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Scottish Court of Session Decisions >>
Blair of Kinfawns v Mr Thomas Fowler. [1676] Mor 10168 (6 July 1676)
URL: http://www.bailii.org/scot/cases/ScotCS/1676/Mor2410168-009.html Cite as:
[1676] Mor 10168
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In the case betwixt Sir William Blair of Kinfawns and Mr Thomas Fowler, it was found, that an action, at the instance of the executors of a minister, for building a manse, and refunding the expenses of the same, is competent against the heritors for the time and their representatives; but not against a singular successor, and that it is not debitum fundi.
Reporter, Newbyth.Clerk, Gibson.
Fol. Dic. v. 2. p. 62. Dirleton, No 372. p. 182.*** Gosford reports this case:
In a reduction and suspension of a decreet obtained and assigned to the minister by the relict of Mr James Oliphant against Kinfawns, before the Sheriff, for payment of his proportion of the reparation of the building of a manse, upon this reason, that the decreet was most unjustly pronounced against him, who was a singular successor, and had no interest in the parish the time of the building of the manse, for which expenses the heritors for the time were only liable after valuation; but, that debt not being debitum fundi, but only due by act of Parliament, which imposeth it upon the present heritors, can never affect a singular successor, as was decided in the case of Guthrie against the L. Mackerston, No 74. p. 10137. It was answered for the charger, That the decreet could not be reduced nor suspended upon that ground, because, by the act of Parliament, it is provided, that buildings and meliorations of manses should be valued at the incumbent's death, and belonged to the executors, and were payable by the heritors the time of the valuation; but so it is that Kinfawns was then an heritor, and as, in law, he would be obliged to pay that same proportion, if the manse had not been built, so he now enjoying the benefit thereof, he ought to be liable; and as to the case of Guthrie and Mackerston, it doth not meet that which is now in controversy, seeing he was neither heritor the time of the incumbent's decease, nor of the valuation. The Lords having considered this as a leading case, did suspend and reduce the decreet upon the reasons libelled, notwithstanding of the answer, being chiefly moved upon the reasons, that the act of Parliament did not at all make the expenses of building and repairing of manses to be a real debt affecting a singular successor, after valuation of their lands, that they shall be liable to the incumbent or his executors; and if it were otherwise interpreted, no singular successor could be secure after a lawful purchase, seeing there is no register of such burdens, or of discharges thereof. 2do, If ministers be clearly founded in law, and never pursue the present heritors during their abode in the parish, nor after they are gone out, it is presumed that they have been satisfied, upon which grounds Kinfawns was most favourable, there being no less than 30 years since the building of the said manse, and that if he was not paid, it was more just that he being in moraet supina negligentia, should pursue the former heritor or his successor, than a singular successor who was no ways obliged.
Gosford, MS. No 874. p. 555.
*** A similar decision was pronounced, 2d February 1672, Guthrie against Laird of Mackerston, No 74. p. 10137, voce Periculum.
