Scottish Court of Session Decisions

In 1637 the Earl of Lothian was titular of the teinds of the parish of Oxnam, and also proprietor of lands within that parish. The Earl of Roxburghe was proprietor of the barony of Plenderleith and others, lying within the same parish. In that year a disposition was granted by the Earl of Lothian, and certain members of the Lothian family, narrating that, by the decree-arbitral of the King, it was appointed that heritors should enjoy the teinds of their own lands, on satisfying the titular therefor; that the Earl of Roxburghe had paid “ane certain great sum of money,” wherewith the disponer was satisfied; and therefore the granters “sellis, annaleis and dispones to the said Noble Erle of Roxburgh, &c. his airis maill and assignayis quhatsumever, heretablie and irredimablie (inter alia) the Teyud Schavis of All and Haill his lands and baronie of Plenderleith, with thair pertinentis, lyand within the said Parochin of Oxnam.” The disponee was taken bound to pay yearly “to the ministers serving the cure at the kirks respective above and after specified, of the particular duties following as ane part of the stipends assigned and provided to them for serving the cure thereat, viz. To the minister serving the cure at the said Kirk of Eckfurd, and his successors, forty bolls bear, forty bolls meal, Abbay mett of Jedburgh. To the minister serving the cure at the said Kirk of Hownem and his successors, five bolls bear and five bolls meal of the measure aforesaid; and to the minister serving the cure at the said Kirk of Oxnam and his successors, at the terms of payment used and wont, and that for our relief thereof, and also relieving us our heirs and successors of all taxations, impositions, annuitys, and other burdens whatsomever, imposed, or to be imposed, upon the teinds of the particular lands, baronys, and others above written, disponed by us to the said Earl of Roxburghe.” The deed contained this obligation on the disponers: “And sicklyke we (the granters) be thir presentis, bindis and obleigs us our airis, executors and assignayis, conjuntlie and severallie, to warrand, releve and keip skaithless the said Noble Erle Robert Erle of Roxburgh, his airis and assignayis, of all payment for the said teynd schavis and parsonage teyndis of the particular landis, baronies, and utheris above written, of any farder stipend, augmentation or dewtie to the ministeris serving the cure at the Kirkis respective above specifeit, and thair successouris in all tyme coming, nor the particular quantities above mentioned.”

Apparently there was only a sum of vicarage teind, amounting to £8, 17s. 9d. which was at this time payable for the barony of Plenderleith to the minister of Oxnam.

The Earl of Roxburghe, in 1646, on his own procuratory, expede a crown-charter of resignation of his lands, including the barony of Plenderleith, to himself, “hæredibusque suis masculis de corpore suo legitime procreatis seu procreandis; quibus deficientibus, hæredibus suis vel assignatis quibuscunq. in ejus optione, designandis, nominandis, vel constituendis per ipsum, aliquo tempore in vita sua, vel ante ejus decessum, per assignationem, designationem, nominationem, seu declarationem, sub sua subscriptione, ac sub provisionibus, restrictionibus, limitationibus, et conditionibus, in dicta nominatione et designatione continendis, &c.” Under the power of nomination here granted, the Earl, in 1648, executed a deed, nominating the heirs of entail, and specifying the conditions and restrictions of entail. This deed contained the following clause:—“And farder, we have sauld and disponit, and be thir p'ntis sells and disponis to our saidis airis of taillie, successors to our said estate, living, erldom, and lordship foresaid, and the heirs-male lawfullie to be gotten of their bodyes, always under the conditions, restrictions, and conditions above specified, qlk are herein holden as exprest (failzeing of airis-male lawfully gotten, or to be gotten, of our awin bodie), all and sundry utheris lands, heritages, annual rents, milns, woods, fishings, patronages, tacks and rights of teinds, reversions, and otheris heritable rights whatsomever pertaining and belonging to us; and binds and obliges us and our aires, als well male as of line (failzing of airis-male of our awin bodie, as said is), to denude ourselves of the right thereof to and in favour of our saidis airis of taillie, successors foresaidis, always under the provisions, restrictions, and conditions above specified, in sik form and manner as sall be devysit.” Under this destination, the several heirs of entail of the Roxburghe family, have since possessed the entailed estates, including the barony of Plenderleith, and have also possessed the teinds of that barony.

There was no augmentation of the stipend of the cure of Oxnam from 1637 till 1796, on which occasion a protest and requisition was served at the instance of the Duke of Roxburghe, then heir of entail in possession of the barony of Plenderleith, and its teinds, upon the Marquis of Lothian, titular, then representing the Earl of Lothian who had disponed the teinds in 1637. The requisition called on the Marquis, in virtue of the obligation of relief in the said disposition, to relieve him of any share of the augmented stipend which might be laid on the barony of Plenderleith. In the locality of that augmentation the following entry was made:—“Out of the teind of Plenderleith and Hyndhope, belonging to the Duke of Roxburghe, the old stipend, being the tack-duty for the vicarage, and the augmentation being payable by the Marquis of Lothian, in terms of the warrandice by the Marquis's predecessors to his Grace's.

Old Stipend.		Augmentation 1796.
	Meal.	Bear.	Sterling Money.
	B. F. P. L.	B. F. P. L.
£8 17 9 4 12	9. 3. 3. 0 3 4.	9. 3. 3. 0 3 4	£0 10 10 7 12”

A final scheme of locality was made up, in terms of the above entry, and approved by the Court. The augmented stipend was paid, in terms thereof, by the Marquis of Lothian. Another augmentation of the stipend of the parish was obtained in 1812, in the locality following on which, a condescendence was lodged for the Duke of Roxburghe, who produced the disposition 1637, and pleaded that any new augmentation, in place of being localled on Plenderleith, should “be stated against the Marquis of Lothian, the titular, in terms of the above obligation of warrandice.” In the scheme of locality this entry was made:—“Out of the parsonage teinds of the lands of Plenderleith and Hyndhope, payable by the Marquis of Lothian in terms of the warrandice in favour of the Duke of Roxburghe's predecessor.

Old Stipend.	Augmentation.
Meal.	Barley.	Money Sterling.	Meal.	Barley.
B. F. P. L.	B. F. P. L.	L. s. d.	B. F. P. L.	B. F. P. L.
9. 3. 3. 0 3 4.	9. 3. 3. 0 3 4	0 10 10 4 12	10. 1. 1. 1 1 4.	10. 1. 1. 1 1 4.”

The Duke of Roxburghe was separately allocated on for the old vicarage teind of £8, 17s. 9d. A scheme of locality in these terms was approved as an interim rule of payment by interlocutor in 1816, and the whole augmented stipend was paid by the Marquis of Lothian. The Marquis alleged that the proceedings in the augmentation in 1796, were had in his absence; and that he had not found it of sufficient importance, to require him to seek an alteration of the interim locality of 1816; but that he was not in any way foreclosed by these proceedings, as to subsequent augmentations. A third decree of augmentation was obtained in 1834, in which an interim scheme of locality was approved of, whereby the barony of Plenderleith and others were directly localled on, for the augmentation, in place of laying it, as before, on the Marquis of Lothian, who had not only lands, but a large amount of free teind in the parish. Against this the Duke of Roxburghe, who was a minor, and his curators, lodged objections, which were afterwards insisted in by the Duke alone, on attaining majority.

The Marquis of Lothian, besides pleading an ineffectual objection against the title of the Duke, on account of an alleged separation of the teinds from the entailed property, pleaded, 1st, That the obligation of warrandice did not extend to future augmentations. At least, in regard to Oxnam parish, as the Duke was taken bound to pay yearly “to the minister, &c. and his successors at the terms of payment used and wont, and that for our relief thereof;” and as the Marquis was only bound to relieve against “any farder stipend”—“nor the particular quantities above specified,” it followed, that, unless a specific quantity had been inserted where the blank occurred, it was impossible to state when the obligation of relief was to begin to operate. The existence of the blank was fatal, both on the ground of producing uncertainty, and as showing that an essential element in the contract of relief had been omitted. 2. It was incompetent to give effect to a mere personal obligation of warrandice, in a process of locality. ¹ The teinds in the parish must be localled on, in their order, according to the rules of law: and if any heritor held a personal right of relief against another party, he must make that good by way of action. In the previous augmentations in this parish, the procedings were either in absence of the Marquis, or not opposed by him, so that they were not authoritative.

The Duke answered, 1. That the obligation expressly reached future augmentations of stipend. The disposition 1637 enumerated the stipends then payable to the ministers of several parishes, and it left a blank in Oxnam parish, because nothing but vicarage teind was payable out of Plenderleith and others, to the minister of Oxnam. The only effect of this was, that, so soon as any amount of parsonage teind whatever was localled on these lands, the obligation of relief took effect. And according to this construction there was no uncertainty in the contract, and nothing omitted. 2. It was competent, ² and it was highly expedient to give effect to an obligation of relief, in making up a scheme of locality, especially where the granter of the obligation was titular of the teinds in the parish, and held ample free teinds in his hands. And accordingly the Marquis had been so localled on, in two successive augmentations of the stipend of this parish.

_________________ Footnote _________________

¹ Dykes, Feb. 18, 1834 (ante, XII. 460).

² Kerr, Jan. 18, 1831 (ante, Teind Rep. p. 245, No. 62); and May 24, 1831 (ante, Teind Rep. p. 268, No. 64), Affd.

The Lord Ordinary found “that the clause of relief founded on by the objectors was granted in 1637 by the Earl of Lothian, titular of the teinds of the parish of Oxnam, and that he thereby became expressly bound to relieve the disponee and his heirs of augmentations: That the objectors and their ward are now in right of the lands and teinds disponed in 1637: That the noble respondent is now admitted to be titular of the teinds of the parish of Oxnam, and successor of the granter of the warrandice, and that no evidence is produced to show that he does not represent the granter, the former titular in 1637: Therefore sustained the objections, and found that the augmentation, so far as allocable on the objector's lands, must be paid by the respondent; and found the objectors entitled to expenses.”

The Marquis reclaimed.