Scottish Court of Session Decisions

The Marquis of Queensberry and others were heritors of the parish of Lochmaben. The castle, and the barony, of Lochmaben, were among the ancient possessions of the Royal Family of Scotland. A large number of the parishioners were small proprietors, or rentallers, termed the King's Kindly Tenants of the Fourtowns of Lochmaben, which were Smallholm, Heitæ, Heck, and Greenhill. The rental of the whole lands enjoyed by these parties under this right, was very considerable, and was said to amount to about £2000 per annum, forming a large portion of the parish.

In 1792 a process of augmentation and locality was raised by the minister of the parish of Lochmaben, with which a second process of augmentation, &c. raised in 1805, was afterwards conjoined. The Kindly Tenants claimed a right of exemption from stipend, and, in 1810, the Lord Ordinary pronounced an interlocutor, assoilzieing “the Kindly Tenants and possessors from the process,” and finding that “they are not liable in payment of any teind or stipend out of the lands respectively possessed by them.” This interlocutor was never approved by the Court, and, according to the form of process then in use, did not become final.

Upon the footing of this interlocutor the stipend was allocated, according to an interim scheme, among the other heritors of the parish, and was paid by them. No final scheme of locality was ever made up. In 1822 a third process of augmentation, &c. was brought and conjoined with the former processes. The Kindly Tenants again claimed exemption from liability for stipend, and referred, inter alia, to the interlocutor of 1810, and the actings of parties thereon, as establishing their right. The Marquis of Queensberry and other heritors of the parish, after lodging an unsuccessful representation against the interlocutor 1810, raised a reduction of it, on the grounds that it was pronounced sine causa cognita; that it was never approved by the Court; that, as to some of the pursuers, it was res inter alios, they not having been parties; and that “the titles of the defenders gave them no right whatever to exemption from teinds or ministers' stipends—the lands contained in them never having been proper Crown-lands, or held jure coronæ, having belonged to King Robert the Bruce, prior to his accession to the Crown, tanquam quilibet.” The summons concluded for reduction of the interlocutor, and that the pursuers should be reponed against it in integrum; or, at least, that it should be declared that the interlocutor “could only be effectual to the defenders, quoad præterita, or at most, whilst the minister's stipend is allocated and paid in virtue of said interlocutor, or under the process of locality in which the same was pronounced, and that said interlocutor cannot confer upon the defenders a right of exemption from teinds or ministers' stipends in the present or in any other process of locality, but that the stipend of the parish, old and augmented, must, both in the present and in all after processes of locality, be allocated according to the rights and titles of the different heritors, without reference to any allocation which may have been made, or which may have existed under the foresaid previous process of locality;” and farther, that it should be declared that the defenders “are not entitled to have these lands or any part thereof exempted from teinds or payment of ministers' stipends, but that the said lands are liable in teinds and payment of ministers' stipends.”

It was pleaded, in defence, that the pursuers had no title; that they were barred by the plea of res judicata; and that they were farther barred by homologation and acquiescence; but that, if the question were still open, the nature of the defenders' right and possession of their lands was such that they were not liable in payment of teind.

On June 28, 1836, the Court “sustained the title” of the pursuers, found that the interlocutor “had not become final,” and “repelled the plea of res judicata,” and quoad ultra remitted to the Lord Ordinary to proceed. ¹

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¹ Ante, XIV. 1021 (which sec).

When the cause returned to the Lord Ordinary, the defenders unsuccessfully attempted to maintain a plea of acquiescence and homologation, on special circumstances, not requiring to be detailed.

The pursuers alleged that many of the Kindly Tenants had feudalised their rights by obtaining charters from the Earl of Mansfield, who was Crown vassal in the whole subjects; that the whole Kindly Tenants paid their quit-rents for their possessions to the Earl of Mansfield; that they paid cess, and all other public and parish burdens as proprietors, and had contributed to the expense of building the parish church in 1819; and that they acted as commissioners of supply, road-trustees, &c. on the footing of being heritors. These allegations were not admitted by the defenders, but were not expressly denied.

The pursuers now pleaded, 1st, That the castle and barony of Lochmaben, along with the lordship of Annandale, were clearly traced to have been the property of the family of Bruce, for a century and a half before Robert the Bruce ascended the throne. This appeared from the authority of Chalmers, in his Caledonia, ¹ quoting a charter in their favour as early as the reign of David; and it also appeared from many other sources. ² But this fact alone was enough to render the lands liable in teind, since King Robert and his successors possessed the castle and barony not jure coronse, but tanquam quilibet. Besides this, however, the castle and barony had been repeatedly alienated to subjects, particularly to the family of Stormont, afterwards Mansfield, ³ who now held them under the Crown, and drew the quit-rents from the defenders, which were the reddendo paid by them for their rights, and on this separate ground the lands had become liable to teind, even if they had originally been proper Crown domain. ⁴ 2d, But independently of this, the nature of the right enjoyed by the defenders was substantially a right of property, and though not feudalized, yet it might be subjected to teind, just as udal property was. The right of the Kindly Tenants was as permanent as a right of property, for it was decided that they could not be removed. ⁵ They were also entitled to sell, gift, or let the lands held by them. And as they drew the whole fruits of the lands, they enjoyed the plenum dominium as much as a feudal proprietor did. They ought, therefore, to be found liable in teind like any other of the lieges who were feudal or udal proprietors. And although one decision, that of Heasilhead, had found that a rentaller, holding from a subject, could not pursue a valuation of teinds, such rentaller had no indefeasible and permanent interest in the lands, and was therefore in a situation entirely different from the defenders, who would certainly be entitled to lead a valuation if they chose, supposing them to be found liable in teinds.

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¹ III. 73, Note 12, and I. 569.

² 2 Dugd. Baronetage, 447; 1 Douglas Peerage, 316 and 318; Dalrymple, 171, 221, and 357; Prynne's Hist. of Engd., p. 507; 1 Rymer's Fædera, part 2, p. 770; 1 Hailes' Ann., 300, 320, and 336; 1 Tytler's Hist, of Scot., 218; 1 Balf. Ann., 87.

³ Robertson's Index of Charters, p. 6, 7, 9, &c. and 164; 1 Douglas' Peerage, 427; Thomson's Reg, of Retours I. v. Dumfries, 20; Acts of Parl. (Thomson's ed.) IV. 418, and VII. 241; Charters granted to the families of Dunbar, Annandale, and Stormont or Mansfield.

⁴ Rev. J. Gilchrist, Not. 25, 1829 (Shaw's Teind Rep. 200); Locality of Linlithgow, Nov. 25, 1829 (Shaw's Teind Rep. 227); Denny, Dec. 7, 1830 (Shaw's Teind Rep. 239); Falkland, May 25, 1814, F.C.; Connell, p. 54, 2d ed.

⁵ Kindly Tenants of Lochinahen, Nov. 24, 1726 (15195), and Craigie and Stewart's App. Ca., p. 77; Irving, Feb. 4, 1795 (10316); Mounsey, Nov. 30, 1808, F. C.

The defenders pleaded, 1, That the castle and demesne of Lochmaben were proper crown possessions, never alienated to subjects, and were therefore, by the consuetude of Scotland, exempt from liability for teinds; and the lands possessed by the defenders were part of the said demesne. In support of this plea, the defenders entered into a full examination of the history of the lands, and castle, as appearing in the works of historians, the acts of the Scottish Parliament, ¹ &c. 2. Even if the lands and castle belonged to a subject, still the right of the defenders was not of a nature which rendered the lands in their possession teindable. The defenders were not proprietors, but tenants, and were invariably so designed in all documents, and in all judicial proceedings; and although they possessed peculiar privileges, as being Kindly Tenants of the crown, these did not alter the nature of their right so as to convert a rental-right into a right of property. Though it had been decided that the defenders were not removeable from their possessions, that was on the principle that they were kindly tenants of the King, and, as the king never dies, their right, though merely that of tenancy, could never fall, being construed to be granted during the life of the granter. And though it had also been decided that they could effectually grant a security over the lands possessed by them, or sell their right in these lands, yet that did not alter the nature of their right into a right of property, any more than a long lease was so altered, when onerously assigned by the holder of it, or when converted into a security by assigning it, and giving possession to the assignee. And although a form, analogous to sasine, had sometimes been used by Kindly Tenants in transferring their rights, that was formerly common in leases, and did not change the nature of the right, ² which still remained a right of mere tenancy. And as tenants were not liable in teind, the defenders should be exempted. Accordingly, it had been held in the case of Heasil-head, ³ that a kindly tenant could not pursue a valuation; which decision necessarily implied that the right was exempt from teind, otherwise, the co-ordinate right to pursue a valuation must have existed.

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¹ Reg. Mag. Sig. p. 18 and 241; Rotuli Scotiæ, I, 263 and 281; Pitscottie, p. 35; Godscroft, p. 182; Act. Parl. (Thomson's ed.) II. p. 87, 154, and 465; Reg. Sec. Sig. III. 198 and IV. 185; Act. Pari. IV. p. 28, 171, 495, 664, 241, 609; Act. Parl. IX. p. 210; Ruddiman's Introd, to Anderson's Diplomata, p. 68; Dalrymple'a Hiator. Collect. p. 194; I Hailes Annals, 77 and 98; Camden (Gibson's Translation) II. 1025; Gough's Camden, III. 427; Hutchison's Cumberland, II. 592.

² M'Kenzie's Observ. p. 37; Lord Advocate, Dec. 6, 1758 (15196).

³ March 8, 1639 (15732).

The Lord Ordinary pronounced this interlocutor:—“Having considered the revised cases, and whole process, in terms of the remit from the Inner-House of 28th June, 1836,—In respect the defenders have not urged any other preliminary pleas than those formerly disposed of by the Court: Finds, on the merits, that the defenders possess their lands either on written titles, or without writing, by admission of all concerned, as Crown rentallers, whereby they have a right of property in their whole possessions indefeasible by the Crown, and capable of being feudalized, burdened, and alienated by the defenders at pleasure: Finds, that the defenders' property, if it ever belonged to the Kings of Scotland jure coronæ, being now held in full and indefeasible property by parties entitled to all the substantial rights of vassals, without any limitation or reservation in favour of the Crown, is legally and validly dissolved, at least quoad the dominium utile, from the Crown, and so is liable in a rateable proportion of teind duties for payment of the minister's stipend: Therefore sustains the reasons of reduction, and reduces, decerns, and declares in terms of the libel: Finds expenses due to neither party, and decerns.” ^*

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* “ Note.—The parties having now joined issue on the merits, the sole question occurring for decision is, whether the Kindly Tenants of Lochmaben (being Crown rentallers) are bound to pay teind for the properties held by them.

“The cases give an elaborate and probably as clear a view of the history of this ancient territory as can be traced. On the one hand, the defenders (the Kindly Tenants) maintain, that they are not liable, as they are mere tenants of the Crown upon an estate forming part of an ancient demesne of the Kings of Scotland, and no not liable for teind; while the pursuers allege, that the properties in dispute formed part of the possessions of the ancestors of Robert the Bruce, for ages, when they were liege subjects of the King of Scotland, and that the lands were thus at a remote period liable in all public burdens, civil and ecclesiastical, from which they are not liberated by the heir succeeding to the Crown.

“If the question turned on the precise ascertainment of the origin of the Brace's acquisition of this territory, the case would certainly be involved in great obscurity and difficulty. The probability is, that it, as well perhaps as the whole surrounding district, belonged to the Lords of Annandale, long before the illustrious heir of the family ascended the throne. This is the clear opinion of Chalmers, upon evidence which he quotes; and although the grounds of that opinion are attacked in a very elaborate and able disquisition in the defenders' revised case, it is possible that some disciple of Chalmers may, on a fitting occasion, be able to vindicate the historical accuracy of the learned antiquarian.

“But it is thought that this research is quite superfluous in the present discussion. For whether the territory abound Lochmaben was part of the royal demesnes from its earliest history, or was the fief of a powerful family who succeeded to the Crown, seems to be of no consequence, from the course of the latest and best considered decisions on the law of tithe. On the one hand, even if property were traced ever so clearly to have been part of the royal possessions held by the sovereigns from remote ages jure coronæ, yet if it had been latterly alienated to subjects as vassals, it is liable for teinds. On this ground the decision in the case of Falkland proceeded in 1814; and in that of Denny, a feuar of the old garden of the Castle of Dumbarton, in 1830; the latter case being specially reported as fixing that ‘lands which have been dissolved from the Crown, and become the property of a subject, are liable in teind.’ (Shaw's Teind Cases, p. 239).

“On the other hand, it has been found, that if the property of a royal park remains to any effect with the Crown, a party holding the office of keeper or ranger, even with an hereditary grant entitling him to occupy the surface, and to enjoy the fruits, it is not teindable. On that ground, the decision in the case of Lord Haddington, as keeper of the King's Park, proceeded. Still, in the latter case, Lord Corehouse, who gave the opinion, to which the majority of the Court assented, observed—‘If the Earl of Haddington held a feu of the lands, then they must have been teindable, but the reverse holds, as the Earl is the mere custodier of the Park.’

“But the case of Linlithgow was decided on the same day, and there the Court found the lands liable in teind, ‘in respect that though they appear to have been originally Crown lands, yet having been granted in fen to the Earls of Linlithgow, and others, and reverted to the Crown by the attainder of the Earl, the character of the tenure is changed, and the lands have become liable in payment of teind in like manner as any other lands held feu of the Crown.’

“All of these cases are fully and accurately reported in the last edition of Sir John Connell's work, Vol. II p. 54, &c. They were pronounced after much consideration, in the course of which the opinion of the first counsel in England was taken relative to the practice of subjecting the present, or ancient royal demesnes in England, to tithe, and therefore it is impossible now to question in this Court the law thus deliberately fixed.

“The effect of these authorities, however, in the present case, is conceived to be insuperable. The defenders possess on tenures, to all intents and purposes, as available to them and as indefeasible as feus. It has been found, in a series of decisions, (1.) That the Crown rentallers of Lochmaben cannot be removed; Mor. p. 15195. (2.) That they may alienate their lands, and convey them onerously, or gratuitously, if they choose to feudalize their rights; Mor. p. 16316. (3.) That they may grant valid heritable securities over their properties, whether they are previously infeft or not; Fac. Coll. 30th November, 1808. In short, for aught that appears, they may not only cultivate the surface, but dispose of all pertinents a centro usque ad caelum as they please. The defenders are thus the proprietors of the subjects, occupied by them, according to every criterion by which property can be ascertained.

“As the defenders have the sole right of property in the lands occupied by them (under a different name, but with all the substantial rights of the udal proprietors in Orkney), they must, like udal proprietors, be liable in all the burdens legally attaching to ownership, including stipend inter alia. Of course they will have right as proprietors to value their teinds, by which this burden may be limited and defined. The defenders, no doubt, have founded on the case of Heasilhead against his tenants, reported by Durie, in 1639, to show that a valuation by rentallers is incompetent; but that was a valuation by rentallers under a subject superior, who notoriously are removable by the landlord, and, therefore, that case was the converse of the present in the most essential circumstance.

“Standing as the present case does, on the titles, the Lord Ordinary has not thought it necessary to order any investigation to be made into the disputed matters of fact. But there are some important allegations made by the pursuers, which the defenders do not meet with any very special explanation in answer. Thus, in Art. 14 of their Condescendence, the pursuers state that the defenders pay ' the ordinary public burdens,' in illustration of which averment, the pursuers repeatedly mention in the case, that the defenders' lands stand rated in the cess-books, and that they have always paid cess. The defenders do not advert at all to the cess-books; but they refer (Statement 4), to an order of Parliament in 1690, by which a certain additional assessment was ordered to be taken off. Still it seems rather deducible, from the ambiguous statement of the defenders on this matter, that they still pay at least the original imposition of cess. In like manner, the defenders' answer to the 15th article of the Condescendence, is somewhat equivocal or obscure. But, independent of these allegations, it is thought that the defenders are legally chargeable with stipend, in respect of the proprietary nature of their rights to the lands possessed by them.

“Expenses have not been given to the pursuers, as they, by not bringing the question properly under review in 1810, may have led the defenders to suppose their right to exemption from teind better founded than it is.”

The defenders reclaimed on the merits, and the pursuers, on the point of expenses.