 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackenzie Petitioner. v. Simpson Petitioner [1921] ScotLR 468 (27 May 1921) URL: http://www.bailii.org/scot/cases/ScotCS/1921/58SLR0468.html Cite as: [1921] ScotLR 468, [1921] SLR 468 |
||
[New search] [Printable PDF version] [Help]
Page: 468↓
The Glebe Lands (Scotland) Act 1866 provides (sec. 18) that the expenses of applying for authority to feu, and also those of making the necessary streets and drains, shall form a permanent burden
Page: 469↓
upon the glebe, the interest thereon until the burden is extinguished to be a first charge on the revenue of the glebe; and (sec. 19) that the casualties of superiority of the feu shall be invested to form a sinking fund to meet the said burden. The Feudal Casualties (Scotland) Act 1914 provides (sec. 18)—“In feus granted after the commencement of this Act the annual feu-duty shall be a fixed amount or quantity, and no casualties shall be payable to the granter of the feu or his successors in the superiority. …”
In an application for authority to feu the glebe under the Glebe Lands (Scotland) Act 1866 the Court while granting the application and declaring the expenses of the application a permanent burden on the glebe refused to make a proportion of the feu-duties liable in contribution to the sinking fund, in respect that it was not within the power of the Court to impose such a modification on the statutory enactments.
The Glebe Lands (Scotland) Act 1866 enacts—Section 18—“The Court, on the granting of any such order or interlocutor, or at any time thereafter, on the summary application of the minister on whose application the interlocutor or order was granted, or his heirs, executors, administrators, or assignees, shall inquire into and ascertain the sums which shall have been paid as the costs, charges, and expenses of applying for and obtaining such order or interlocutor and incidental thereto, and of making and constructing streets, roads, passages, sewers or drains in or through the glebe or any part thereof, and shall decern the amount thereof a permanent burden upon the glebe; and the interest thereof until extinguished, as after provided or otherwise, shall form a first charge on the whole produce and revenue of the said glebe.” Section 19—“As long as any such burden shall remain unpaid the casualties of superiority which shall become payable under any contracts, dispositions, or charters of feu, or writs by progress for entering heirs or successors to be granted as aforesaid, as well as any payments which may be received from the grantees thereof in respect of the construction of roads, sewers, or drains, shall be invested, at the sight of the heritors and presbytery, on such securities and in such manner as the Court of Teinds shall approve as a sinking fund to meet the said burden, and the interest of the said fund shall be paid to the minister for the time being, and as soon as the said fund shall amount to a sum sufficient to pay the said burden, the same shall be paid off, and thereupon the casualties of superiority thereafter to become due shall form part of the income of the minister for the time being and be payable to him.”
The Feudal Casualties (Scotland) Act 1914 enacts—Section 18—( supra).
The Rev. Neil Kennedy Mackenzie, minister of the parish of Longforgan, and the Rev. James S. Simpson, minister of the parish of Kennoway, presented petitions for authority to feu the glebes of their respective parishes. Authority having been granted, counsel for the petitioners was heard on the Auditor's reports, when the attention of the Court was drawn to the effect of section 18 of the Feudal Casualties (Scotland) Act 1914 upon the provisions of the Glebe Lands (Scotland) Act 1866—the effect of the Act of 1914 being to render section 19 of the Glebe Lands (Scotland) Act 1866 inoperative by depriving the sinking fund of its principal source of revenue, viz, the casualties.
Counsel suggested that the Court might provide a remedy by authorising a temporary increase in the amount of the feu-duties and allocating the increase to the sinking fund in place of the casualties which were no longer available.
At advising, the opinion of the Court (which consisted of the
The reference to a subsequent provision of the Act is to section 19, according to which, as long as the burden of the expenses remains unpaid, the casualties of superiority arising under the feu-contracts to be granted, together with payments from feuars in respect of the construction of roads and drains, must be invested in order to provide a sinking fund to meet the said burden, the interest of such fund being paid to the minister for the time being. When this fund becomes sufficiently large the burden is to be paid off, and thereafter the casualties become payable to the minister for the time being. But by section 18 of the Feudal Casualties (Scotland) Act 1914 casualties are prohibited in feus granted after 10th August 1914, the date of the commencement of the Act. It follows that in the case of the applications under consideration the whole machinery of section 19 of the Glebe Lands (Scotland) Act 1866—except as regards payments for roads and drains—becomes inoperative. Section 16 of the Feudal Casualties Act contains a provision designed to meet the case of the redemption of casualties arising under feus of glebe lands, but 1 have not been able to discover any provision in the statute meeting cases like the present
Page: 470↓
The only other reference in the Glebe Lands Act to the payment of the expenses of an application under section 5 is to be found in section 17. In the event of a coterminous proprietor exercising the option given to him by that section in the form of purchase, such expenses are directed to be deducted from the price before investment thereof. This provision is intact, but the contingency on which it proceeds is probably only rarely realised.
The expenses must of course be declared a permanent burden on the glebe, and the interlocutor will be in the ordinary form. It must remain a matter for consideration by the authorities of the Church whether a remedy for the state of matters produced by the Feudal Casualties Act should be sought by legislation or otherwise.
The Court approved of the Auditor's report in each petition and decerned the taxed amount to be a permanent burden upon the glebe of the parish, and the interest thereof to be a first charge upon the whole produce and revenue of the said Glebe until the said burden should be extinguished in manner provided by the Glebe Lands (Scotland) Act 1866.
Counsel for Petitioners— Keith. Agents—(for Rev. N. K. Mackenzie) J. Douglas Gardiner & Mill, S.S.C.—(for Rev. J. S. Simpson) Henry Bower, S.S.C.