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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tailors of Aberdeen v Coutts. [1834] CA 13_226 (20 December 1834)
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Cite as: [1834] CA 13_226
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SCOTTISH_Shaw_Court_of_Session
Page: 226↓
v.
Subject_Real and Personal—Clause.—
1. If an obligation ad factum prestandum be made the condition of a feudal grant, and enter the investiture of the disponee, it may be enforced against a singular successor, though neither declared a real burden, nor protected by an irritancy. 2. Although there be an obligation in a feu-disposition binding the disponee, his heirs, and singular successors, to grant personal bond for performance of all the conditions of the grant within six months after acquiring the subjects, yet held that this was not effectual to compel a singular successor to grant bond in relation to obligations merely personal, but only as to those which were real burdens.
The Corporation of Tailors of Aberdeen being proprietors of ground, on which it was intended that a square, to be called Bon-Accord Square, should be built, sold a lot by public roup to George Nicol, on 11th September, 1823. The articles of roup contained, inter alia, these provisions: “The Tailor Corporation become bound to erect a metal railing around the centre of the said square with all convenient speed,” &c.; “the feuars in the square shall be obliged to maintain the said railing in the square in complete repair;” “they shall have the privilege of walking in the area in the centre of the square, and be liable in keeping the railing in the centre of the square in complete repair;” “the feuars in the square shall be obliged to pay, along with their first year's feu-duty, a proportion, according to their extent of feet in front, of two-third parts of the expense of erecting the railing along the centre of the square—the corporation being at the expense of the other third part thereof;” “the feu-duties shall be payable by the purchasers, their heirs and successors,” &c., “with this condition always,
The feu-duty was £18, 2s, 6d., and the corporation executed a feu-charter in favour of Nicoll, upon which infeftment followed. Being afterwards advised, that as the subject was held burgage, the feu-charter was inept, a disposition was granted by the corporation, in 1825, to Nicol, his heirs and assignees whomsoever, containing a procuratory for resigning, so as to obtain an entry from the magistrates. By this deed, the corporation, “in consideration of the payment of the yearly duty or ground rent after mentioned, and performance of the conditions after specified,” disponed the ground, “together with the privilege of walking in the area in the middle of the square,” &c. “but always with and under the following conditions, provisions, and limitations, which the said George Nicol and his foresaids shall be obliged to comply with, viz. to erect certain houses,” &c., “and also to erect an iron railing of three and a half feet high upon the inner edge of the pavement after mentioned,” &c. After specifying the obligation to rebuild decayed houses within two years, under pain of an irritancy of the right to the ground, and certain other obligations, to which no irritancies were annexed, the deed proceeded,—“Farther, the said George Nicol and his foresaids shall be obliged, on their own expenses, within three years after Martinmas, 1823 (being the term of his entry to the premises), to form and lay, with well-hewn hillstone,
In the infeftment which followed, it was set forth, that the corporation resigned the ground, together with the privilege of walking in the square, &c., “but always with and under the following conditions, provisions, and limitations, which the said George Nicol, and his foresaids,
After Nicol had built houses on his lot of ground, he became bankrupt, and Adam Coutts, advocate in Aberdeen, purchased the ground and houses, and obtained a disposition and infeftment, which omitted the greater part of the conditions and obligations contained in the articles of roup, and the conveyance to Nicol. The corporation raised an action against Coutts, concluding, that he should be ordained—1. To grant them a personal obligation for payment of the ground rent, and for performance of the whole clauses and conditions contained in the articles of roup, and the disposition to Nicol, in so far at least as these were not already implemented; 2. To pay them £16, 6s. 6d. as the proportion effeiring to the subjects acquired by him of the expense of erecting the metal railing in the square; 3. To lay the pavement, conform to articles of roup and the disposition; 4. To erect an iron railing (at one side of the pavement), in terms of the articles and disposition; and, 5. To pay £27, 14s, 2d. as his proportion of a common sewer. *
Coutts resisted payment, or performance, of these demands, on the ground that they did not effectually attach to him, a singular successor, as they were neither made real burdens, nor protected by a condition of irritancy.
Pleaded by the Corporation—
1. The obligations were made conditions of the right, and Nicol could not transmit the right to any party unaffected by these conditions. Besides, the stipulation to pay a proportion of the railing round the square was the counterpart of the privilege conferred of walking in the square; and as Coutts had acquired the privilege, he must be liable in the counter prestation; and so also as to the other obligations.
2. As Coutts saw every obligation which was imposed on Nicol, by inspecting his titles, he was in mala fide to accept a disposition from Nicol, except under the liability to give full effect to all these conditions.
3. The conditions, being engrossed in the instrument of infeftment of Nicol were good against a singular successor, whether protected by an irritancy or not, and whether declared a real burden or not
Pleaded by Coutts—
1. The obligations were not made conditions entering the constitution
_________________ Footnote _________________
* The leading ground on which these claims were made was rested on Coutts' liability as a singular successor, or standing in the place of Nicol; but there were also certain specialties founded on. As, with one exception (relative to the sewer), these were not sustained by the Court, they are not reported. They are alluded to in the Lord Ordinary's note, p. 232.
of the feudal right, but merely personal obligations on Nicol. He was liable to fulfil them; but, if he failed, no irritancy was annexed to his failure, and the only consequence was, that he was liable in damages.
2. No singular successor could be liable, except either for real burdens, or for such personal obligations as were laid upon himself in the immediate title granted to him; or, by the insertion of an irritancy in his author's right, in the event of any of the personal obligations laid upon that author remaining unimplemented. But the conditions and obligations sued on did not belong to any of these classes. And as some of the conditions in the grant to Nicol were expressly declared real burdens, and others protected by irritancies, it was evident, even in a question of intention, that the rest were meant to attach to Nicol only, and not to a singular successor from him,
3. Many of the conditions did not admit of being declared real burdens, even by being engrossed in the infeftment; such as the indefinite liability for a proportion of the expense of the railing in the square. And, generally, the conditions and obligations in the infeftment were so conceived as to attach only to Nicol, and not to a singular successor in the subject.
The Lord Ordinary pronounced this interlocutor:—“Finds that the burgage disposition by the Corporation of Tailors in Aberdeen, in favour of George Nicol, on which Nicol was infeft, superseded, by the consent of these parties, the feu-charter previously granted by the corporation to Nicol: Finds that the following obligations imposed upon Nicol, the disponee, by that disposition, viz. an obligation to grant a personal bond for the payment of the ground-rent, and performance of the conditions in the articles of roup; the obligation to pay a proportion of the expense of erecting the rail and wall round the centre of Bon-Accord Square; the obligation to lay pavement on the east and west end of the subjects conveyed, and the obligation to erect an iron rail at the east end of the subjects fronting the said square, not being protected by clauses of irritancy, nor contained in Nicol's infeftment, are not binding on bis singular successors in the subjects; * and therefore assoilzies the defender from the conclusions of the libel, in so far as the above-mentioned obligations are concerned, and decerns;” but, on certain special grounds, decerned against the defender for the sum claimed on account of the sewer.
Both parties reclaimed, and the Court, “in respect that the infeftment in favour of George Nicol does contain the conditions relative to granting a personal bond, the expense of erecting the rail and wall round the centre of Bon-Accord Square, the pavement and the iron rail fronting the square (which the Lord Ordinary had been led to believe were not mentioned in that infeftment), before answer, recalled the interlocutor
_________________ Footnote _________________
* His Lordship then pronounced certain findings on the specialties, which he found not proved.
reclaimed against, and remitted to the Lord Ordinary to reconsider the cause, and to proceed therein as to him shall seem just.”
The Lord Ordinary pronounced this interlocutor:—“Finds that the defender is not bound to grant to the pursuer, for behoof of the corporation, a personal obligation for payment of the yearly duties or ground-rents specified in the libel, or for performance of the clauses and conditions contained in the articles of roup, or in the burgage disposition granted by the corporation in favour of George Nicol: Finds that the defender is not liable to pay to the pursuers, or their successors in office, the sum of £16, 6s. 6¾d., with interest, as part of the expense of erecting the metal railing and dwarf wall round the centre of Bon-Accord Square; Finds that the defender is bound to lay the foot pavement opposite to and along the sides of the subjects disponed to George Nicol, and to erect an iron railing at the east end of the said subjects, in conformity with the provisions in the burgage disposition, and within the time therein mentioned: Finds that the defender is not bound to lay the pavement at the west end of the subjects fronting Bon-Accord Terrace, there being no obligation to that effect in the disposition to Nicol: Finds that the defender is liable to the pursuers in the sum of £27, 14s. 2d., being his proportion of the expense of erecting a common-sewer, of which he has taken benefit since his purchase from Nicol; assoilzies the defender from all the other conclusions of the libel, and decerns: Finds the pursuers liable to the defender in expenses of process, except in so far as the discussion and proof regarding the common-sewer is concerned; and finds the defender liable to the pursuers in the expense of the said discussion and proof.” *
_________________ Footnote _________________
* “ Note.—The Lord Ordinary regrets that a clerical error in transcribing the interlocutor of the 16th November, 1832, should have given unnecessary trouble to the Court and the parties; but he is glad to have an opportunity of reconsidering that interlocutor, as he does not now regard the case in exactly the same light as he did when it was pronounced. He intended to find that certain obligations specified in the interlocutor, which were imposed on Nicol by the burgage disposition in his favour, not being protected by clauses of irritancy, and the obligation to engross these obligations in future rights and conveyances not being inserted in Nicol's infeftment, they are not binding on Nicol's singular successors.
“The action is laid on two grounds. 1st, That certain conditions or obligations contained in the articles of roup, and in the burgage disposition to Nicol, are constituted real burdens, and therefore affect the defender as a singular successor. 2dly, That, whether they have been properly constituted real burdens or not, the defender, as the clerk of the corporation, and occasionally its law adviser, in consequence of his negligence or fraud, or both, is barred, personali exceptione, from maintaining that they are not effectual against him, in a question with the corporation.
“The first is a pure question of conveyancing or feudal law. The burgage diaposition to Nicol contains two classes of conditions or obligations. The first class are expressly declared in the deed itself to be real burdens, and they are protected by clauses of irritancy; with regard to this class, there is no dispute between the parties. The second class are not declared real burdens, nor protected by irritancies, and it is this class which the pursuers attempt in the present action to enforce against this defender as a singular successor.
“1. In the burgage disposition there is an obligation on the disponee, and his heirs and successors, to pay a proportion of the expense of forming and enclosing the area in the middle of Bon-Accord Square, as at Martinmas, 1824, i. e. at Martinmas, ten months before the date of the disposition, with interest from that date. But an obligation to pay an indefinite sum of money, which is not declared to be a real burden, and, indeed, cannot be so constituted, though obligatory on the disponee and his representatives, in terms of the personal contract, is not effectual against a singular successor. It is coupled with an obligation to uphold and keep in repair this enclosure, but there is no conclusion in the libel relative to the last mentioned obligation.
“2. There is an obligation on the disponee to lay a foot-pavement opposite to, and along the Bides of the subjects disponed. This obligation, ad factum præstandum, may be held as a condition of the grant, in terms of several decisions quoted in the cases; and, as it entered the investiture of Nicol, the Lord Ordinary is now of opinion that it may be enforced against the defender, though neither declared a real burden, nor protected by an irritancy.
“3. In the articles of roup, there is an obligation to lay the pavement at the west end of the subjects fronting Bon-Accord Terrace; but it is not in Nicol's investiture, and therefore, having in view the first ground of action only, it can be of no avail against the defender as a singular successor.
“4. There is an obligation on the disponee, his heirs and singular successors, to grant personal bonds for payment of the duties and ground-rents, and for performance of all the conditions of the grant, within six months after acquiring the subjects. If by ‘singular successors’ is meant singular successors after Nicol's infeftment, it is plain that the obligation can import only that a bond should be granted for performance of obligations which are real rights, independently, and not for the performance of personal obligations, otherwise ineffectual against singular successors. Any other construction would infer, that obligations which cannot be made real, in the ordinary form, may become so by a provision of this description, for which there is no authority whatever in the law of Scotland. The defender may be bound by this clause to grant a personal bond for payment of yearly duties and ground-rents, which would facilitate execution at the instance of the corporation, and for performance of any other real burden in the grant; and it is plain, from the context, that nothing more was intended by the parties.
“There is no obligation in the disposition to Nicol to pay any part of the expense of the common-sewer. But it appears that the defender, under cloud of night, opened a drain from the street, in front of one of his feus, and close to the curbstone of the pavement, to which his cellars reached, by which the water was let into the sewer. It is, indeed, admitted by the pursuers, that the drain did not communicate directly with the defender's house, but it had the effect of carrying off the water which flowed from the street into his kitchen, and which must have rendered that part of the house very inconvenient, if not uninhabitable. It was in this respect, therefore, as much for his benefit as if it had communicated with the house. There is no evidence that the corporation was bound to carry off that water at their own expense. If that had been the case, the defender would have had no motive to make the drain in the clandestine manner he did.”
Both parties again reclaimed.
The Court adhered.
Solicitors: Greig and Morton, W.S.— Gordon and Barron, W. S.—Agents.