Scottish Court of Session Decisions

The following Special Case was presented by Mrs Ewing and H. E. C. Ewing, Esq. of Strathleven:—

“The facts are as follows:—(1) The late James Ewing, Esq. of Strathleven, died on or about 29th November 1853, leaving a general trust-disposition and settlement, dated 9th September 1844, whereby he conveyed to trustees, for the purposes therein mentioned, the whole lands, estates, &c. (2) By the third purpose or direction of the said trust-disposition and settlement the testator directed and appointed his trustees to execute and deliver a regular and valid deed or deeds disponing and conveying his lands and estate of Levenside, &c., to the said Mrs Jane Tucker Crawford or Ewing, his spouse, in liferent, during all the days and years of her life, in the event of her surviving him, but so long as she continued his widow allenarly, and to and in favour of the heir-male of the body of the said James Ewing and his heirs and assignees whomsoever; whom failing, the heir-female of the body of the said James Ewing and her heirs and assignees whomsoever; whom failing, to the said Humphrey Ewing Crum Ewing, and the heirsmale of his body, &c., in fee. (3) The said James Ewing left no heirs of his body. (4) After his death the trustees made up a feudal title to the said lands and estate of Levenside, now called Strathleven, and then, by disposition bearing date the 7th December 1854, they disponed and conveyed the same to Mrs Jane Tucker Crawford or Ewing ‘in liferent during all the days and years of her life, but so long as she continued the widow of the said James Ewing allenarly.’ Mrs Ewing was duly infeft on this disposition in September 1855. (5) Certain portions of the said estate which were held burgage had been disposed of by Mr Ewing and his predecessors for building purposes, the consideration being payment of ground annuals. The contracts of ground-annual are in usual form. By them the property of the building lots is conveyed to be built upon under the real lien and burden of the payment of a yearly ground rent or ground-annual to be paid or uplifted and taken

Page: 417↓

furth of the subjects conveyed at one of the yearly terms, and a like sum in name of grassum is stipulated to be paid at the expiration of every twenty-fifth year from and after the term of entry, over and above the ground rent for the year, with interest and penalty. (6) Another portion of the said estate of Strathleven consists of the superiority of various feus. In the greater part of the feu-dispositions or coutracts the casualties of superiority payable at the entry of heirs and singular successors are taxed at a duplicand of the feu-duty. But in some of the larger and more important feus, granted to linen printers or others, for the purpose of their business, the reddendo clause in the feu-contracts is differently expressed, the lands being holden for the yearly payment of a sum in name of feu-farm duty, and the vassals and their successors paying to the superior and his heirs and successors a sum (either the same, or less than the yearly feu-duty) on the expiry of every twenty-five years from the term of entry, and that in lieu of the casualties, legal or conventional, which might arise, due to the granter and his foresaids as superiors of the subjects. (7) The said Mrs Ewing, in virtue of the liferent conveyance in her favour, has drawn the ground-annuals and feu-duties payable under the contracts of ground-annual and feu-contracts, and she thinks that as liferentrix she is entitled to the sums payable as grassums under the contracts of ground-annual, and to the sums payable every twenty-five years under the feu-contracts. (8) The said Humphrey Ewing Crum Ewing is fiar of the said estate of Strathleven, and vested in the superiority thereof, and disputes the right of Mrs Ewing to such grassums and periodical payments, and maintains that they are payable to him.”

The questions of law for the opinion and judgment of the Court are:—

“1. Whether, during the survivance of the liferentrix, the grassums becoming payable under the said contracts of ground-annual belong to her or to the fiar?

2. Whether, during the survivance of the liferentrix, the sums becoming payable periodically at intervals of twenty-five years under the said feu-contracts belong to her or to the fiar?”