Scottish Court of Session Decisions

Lord Balgray.—I consider this case to be of great importance as a question of Jaw.

The facts of the case are few, simple, and admitted. It humbly appears to me, 1. That where parties have thought fit to carry their transactions into effect, by a certain legal form, acknowledged in the law, and its nature and effects fixed and established by practice and undeviating custom, a court of law has not the power to alter what the parties themselves have agreed to adopt. Intention or equitable considerations have nothing to do with the question.

2. Nothing, as is admitted, appears of the transaction between the parties, but that, of a certain date, a proper and correct feu-charter was granted of certain subjects, by the one party to the other. Whether this was the best mode of carrying the transaction into execution, in all its circumstances, is a different matter, and with which third parties have no concern.

3. It is admitted that no personal obligation, in point of form, is created between the parties, or is ingrafted on the real right executed, which was perfectly competent to be done, both in point of form, and according to established practice. There is no inconsistency; on the contrary, there is great expediency in uniting personal obligations with the pure feudal grant. But where that is not done, each right, whether personal or real, must stand or fall upon its own merits. Parties have alone the power to frame their own rights, and it is not competent for others to supply the defect.

In the present case, the question is presented in its simplest and purest form; and the questions are—

1. Whether the vassal is personally bound to hold the feN-right etiam se invito? Or, Whether the vassal has right to refute it, etiam invito superiore.

2. Supposing the vassal personally bound to hold the right, is be personally bound for the reddendo?

With great deference to the opinion of others, I answer, in point of law,

1. That the vassal is not personally bound to hold the feu se invito, but may refute it, etiam invito superiore.

2. Supposing the vassal personally bound to hold the feu, he is not personally bound for the reddendo.

It would be unnecessary, and indeed improper, to refer to and quote the authorities already laid before the Court by the vassal. I certainly rest upon these authorities. In addition to these, I would submit—

1. By legal construction of the simple feu-charter, the tenendas and reddendo are real conditions of the feudal grant, and not obligations on the vassal personally. Grammatically, tenendas and reddendo are participles; and, logically, participles thus used imply conditions. The meaning is, “I grant the feu to the grantee, he holding it of me, and paying so and so to me.” The words are not “He being hereby bound, and, by acceptation hereof, he hereby binds and obliges himself,” &c.

2. The simple feu-charter does not contain any counter obligation by the vassal, on which any diligence against his person or his general estate can possibly be raised. The simple feu-charter is not signed by him at all.

3. The law has provided a variety of special processes and legal remedies peculiar to the superior. But all of these are against the subject or the rents of it, or the vassal's moveables on the ground, or those of the tenant on the ground. Not one of these special processes or legal remedies is against the person of the vassal, or against his general estate. Thus—1. The process of poinding the ground, for taking the vassal's moveables on the ground, or those of his tenant on the ground.

2. The process of mails and duties, for taking the rents of the subject. 3. The process of declarator of non-entry, for taking the subject itself, if the heir of the vassal deceased will not receive investiture of the subject instead, and in terms of the deceased vassal's investiture. 4. The process of declarator of tinsel ob non solutum canonem, for taking the subject itself, if the vassal will not, or does not perform the reddendo. In this last case, so little does the law infer or imply a personal obligation, that all bygone feu-duties are thereby extinguished and sopited.

To these remedies may be added the declarator of liferent escheat, and the declarators of disclamation and of purpresture, which, although now seldom if ever used, are still competent in law. Now, all these are special processes and special remedies which the law has given to feudal superiors as such; and in not one of those can the person of the vassal he touched, nor aught of his, unless it be on the ground of the feu, or be the rent of the subject, or the subject itself. The superior may raise, no doubt, an ordinary action against the vassal, concluding against him personally for the reddendo. But this would be merely a tentative process, to try whether there ought to be a decree against the vassal personally or not. This is no special process or remedy peculiar to a feudal superior. Our feudal laws have been made mostly by feudal superiors, and most certainly they would have provided a statutory remedy against the vassal personally, if the law was, that he, by his acceptance of the feudal investiture, was bound personally for the feudal reddendo.

4. The act 20, Geo. II., appointing horning against the superior on the vassal's procuratory of resignation, to receive the resignatary as vassal, and grant investiture to him, instead of the vassal resigner, implies that the vassal resigner is not personally bound nor personally liable, neither to hold the subject, nor for the reddendo. To hold that the vassal resigner is bound to hold the subject, and yet entitled to demand that the superior shall receive another vassal in the place of him, the resigner, would be to hold a manifest absurdity—and to hold that the superior is compellable, by law, to liberate one party personally bound to the superior, and to receive another personal obligant instead of the obligant liberated, would be to hold another manifest absurdity. The resigning vassal may be a much more solvent, and a much more eligible debtor than the substituted vassal—and a substitution of debtor for debtor, invito creditore, is perfectly unknown in the law.

It seems to be conceded that, in the case of a pure feudal beneficium, the plea on the defender is sound and incontrovertible. But it is said that here the nature of the transaction between the parties is to be considered as a mutual personal contract between them, and that the real heritable right here occurring must be held and interpreted as an emphyteusis, from which may arise personal obligations hine inde, which may be enforced. But I cannot accede to any such proposition or transmutation. The parties—the granter, on the one hand, and the receiver on the other—have adopted a form applicable to the subject-matter between them, known in the law, which is attended and accompanied with certain legal effects, and that form and these consequences no person is entitled to alter or amend. The name adopted, by which the right is altered, is laid hold of for no reason but to make it the foundation of an argument on an assumed state of the fact.

To maintain, in a pure feudal grant, where no personal obligation has been executed by the parties themselves—that notwithstanding a personal obligation will be implied according to the adequacy or inadequacy of the feudal acknowledgment—appears to me to be contrary to all the principles of the law of Scotland. In this way a simple and pure feu-charter would be differently interpreted, and different effects given to it, according to the comparative value of the reddendo—and this must vary in different times; as what may be an equivalent at first may, in the progress of time, become a mere elusory duty.

If a personal obligation can be enforced against the first vassal, from the mere acceptance of the grant, it must be equally effectual against all singular successors who take the same grant, and if this be the law, all those authorities regarding what is “real and personal” may be obliterated from our books.

If the feudal character of the right stamped on it by the parties is to be altered by interpretation, then that change on the nature of the right must be adopted, and followed out and applied in all the legal consequences. And, therefore, if this feu-charter is to be held as a mere consensual written agreement or contract, it may be fairly asked, what are the rights of heirs, widows, and creditors in such a subject?

Is it possible to maintain that any successor to the feu-right in question, the vassal being infeft, could possibly take it up without a special service?

Or, is it possible to maintain that the subjects contained in the feu-charter would not be affected by the right of terce?

Or, lastly, would it be possible to maintain that any creditor would be preferable on the subjects in question, even although he was not secured by infeftment, and that a mere intimated assignation would be sufficient?

For these reasons, and upon the authorities quoted by the defender, I am humbly of opinion that the defender has a right to be assoilzied upon the surrender of his feu-right.

The case was now put out for advising.

Lord Justice-Clerk.—I feel myself bound to concur with the majority. The authorities appealed to by the defender refer to proper beneficia. I see no authority the other way; and in my notes of Baron Hume's lectures, I have found a passage strongly applicable to the view of Lord Balgray, as to the charter not being a contract. His words are clear and unambiguous, to the effect that the charter constitutes a contract, giving a personal action for payment of feu-duties; and he refers to a case in Kilkerran, Wallace v. Fergusson, June 29, 1730. I therefore agree with the majority.

Lords Glenlee and Meadowbank also concurred.