Scottish Court of Session Decisions

This was a special case for mr jerome dennison, west brough, orkney, and the trustees of the deceased misses barbara and helena fea. the facts of the case were as follows:—by trust—disposition and settlement, dated 21st july 1810, the misses fea assigned and disponed to each other, and the longest liver of them, and after the decease of the survivor to mr patrick neill, printer in edinburgh, and james dennison, of north myre, in sanda, and the other persons therein named, as trustees for the purposes therein specified, the whole means and estate, heritable and moveable, then belonging to them, or which should belong to them or either of them at death; and in particular certain lands called arie and mussater, situated in the island of stronsay in orkney. the misses fea and messrs patrick neill and james dennison were deceased before this case was brought.

By the eighth purpose of the trust it was declared that after the death of certain liferenters, all of whom are now dead, the farm of Mussater and the farm of Arie, together with the mansion—house of Arie, and park and garden adjacent thereto, should form and constitute a fund or mortification for certain charitable purposes therein specified.

The tenth purpose of the trust is in the following terms:—“ Tenthly, We hereby appoint our said trustees, after the death of the survivor of us, to assign, dispone, convey, and make over to and in

Page: 247↓

favour of the said Patrick Neill, and his heirs or assignees, all such lands, houses, or other heritable subjects, of whatever nature or denomination the some may be, which I, the said Helena Fea, may acquire or succeed to after the date of these presents: And further, we appoint our said trustees, in like manner, after the death of the survivor of us, to assign, convey, dispone, and make over all such lands, houses, or other heritable subjects, of whatever nature or denomination the same may be, that I, the said Barbara Fea, may acquire or succeed to after the date of these presents, to and in favour of the said Patrick Neill and James Dennison of Myre, equally betwixt them, and to the heirs of the said Patrick Neill, and on the failure of the said James Dennison, to Janet Traill, daughter of Walter Traill of Westove.”

At the date of the said trust-disposition and settlement, the said Barbara and Helena Fea were equal pro indiviso proprietors of, and infeft in, the above-mentioned lands of Arie and Mussater conform to the following titles, namely (1) Crown charter of adjudication of the said lands in favour of Charles Erskine, merchant in Kirkwall, and his heirs and assignees, dated 1st June 1799; (2) disposition of the said lands by the said Charles Erskine in favour of the said Barbara and Helena Fea, dated 24th February 1800, containing an assignation to the above-mentioned crown charter; and (3) Instrument of Sasine in favour of the said Barbara and Helena Fea, proceeding upon the said crown charter and disposition and assignation.

B the said charter, the said lands of Arie and Mussater were to be held of the Crown, as superior, in free blench farm, and feu-farm, fee and heritage for ever. The clause of reddendo is in the following terms:—“Reddendo inde annuatim, dictus Carolus Erskine ejusque prædict., nobis et regiis successoribus nostris, immediatis legitimis superi—oribusearundem, respectivas feudifirmæ albæ firmæ aliasque divorias et servitia solubi, pro et ex terris aliisqre prædictis uti in prioribus juribus et infeo—t'ameitis earundem content.”

The feu and other duties referred to in the said charter, which consisted of certain quantities of beer, butter, poultry, and money, formed part of the Earldom of Orkney, and were payable to the late Thomas Lord Dundas, to whom they belonged as in right of the Crown, conform to crown charter in his favour of, inter alia, the Earldom of Orkney and Lordship of Zetland, including therein right to the feu and other duties payable by the Crown's vassals within the said Earldom and Lordship, dated 6th August 1787.

In April 1817 the Misses Fea purchased the said dutes from Lord Dundas for £695, 10s. In Oct. 1817 the Misses Fea executed a separate testamentary disposition in favour of Charles Goar, tacksman of Arie, whereby they conveyed to him, from and after the death of the longest liver of them, that part of the said lands of Arie called Hescome, with the corn park adjoining thereto, and upon this disposition the said Charles Goar was infeft, of date, 17th Feb. 1818, after the death of both of the Misses Fea. The said disposition contained an obligation to infeft a se vel de se in ordinary form, and made no allusion to the duties applicable to the said lands, and included in the purchase from Lord Dundas.

The first party to this case was the eldest son and heir-at-law of Mr James Dennison of Myre, named in the tenth purpose of the trust-disposition, and the second parties are the acting trustees under the said disposition, in virtue of deeds of assumption in their favour.

Shortly after the death of the surviving Miss Fea, a payment of £18, 6s. 9d., on account of the before-mentioned duties, was made by Mr Patrick Neill, as the only acting trustee under the trust—disposition, three-fourths of the said sum being paid to Mr Neill himself, and the remaining fourth to the late Mr Dennison. Thereafter Mr Neill waived any claim which he might have to three—fourths of the said duties under the tenth purpose of the trust-disposition, and no further payment was ever made on account thereof. Mr Dennison's claim to the remaining fourth of the said duties was never waived or abandoned, but no further payment was made on account thereof,

In these circumstances, the first party, Mr Jerome Dennison, called upon the second party to convey one fourth part of the said duties (except as regarded the proportion effeiring to the lands of Hescome, disponed as above-mentioned to Charles Goar) and the arrears due in respect thereof.

The questions submitted to the Court were:—

1. “(1) Is the first party entitled, in virtue of the provision in favour of the late James Dennison, of Myre, contained in the tenth purpose of the trust-disposition and settlement by the late Barbara and Helena Fea, to one fourth part of the duties purchased by them from Lord Dundas as above set forth, excepting therefrom the proportion of the said duties effeiring to the lands of Hescome and others, conveyed by the Misses Fea to Charles Goar; and are the second parties bound to convey the said fourth part (excepting as aforesaid) to the first party, with entry as at Martinmas 1871. and to make payment to him of the sum of £279, 1s. 2d. as the arrears thereof?

   Or,

2. (2) Were the said duties, being at the date of the purchase by the Misses Fea payable from their own lands, extinguished confusione by such purchase, and by the disposition by Lord Dundas in their favour?”

It was argued for the first party that these duties were acqutrenda in the meaning of the tenth purpose of the trust-disposition. The tenure of the lands, though not feudal at first, gradually became so— Dundas v. Officers of State, M. 15,103—and the Misses Fea held directly of the Crown, but paid the duties to the Earl of Zetland. These rights formed part of the Earldom, in which the Earl was infeft under his charter of erection, and that part of the Earldom was disponed to the Misses Fea. These duties were therefore heritable irredeemable rights connected with the lands, and as such came under the tenth purpose of the trust.

It was argued for the second parties—(1) that these duties were not heritable, but merely money debts due to the superior; (2) that in purchasing these duties the Misses Fea evidently intended to disburden their lands, and not to acquire a separate estate; and (3) that the duties being payable out of lauds belonging to the Misses Fea, the debt or obligation to pay duty was extinguished confusione—Robertson, M. 3044, Bell's Prin. § 854; Ramsay v. Bank of Scotland, M. 3383; Burnett v. Burnett, 2 Paton's App. 122; Wrights v. Smith, M. 5209; Hogg v. Black. 11 S. 198, 11 Dec. 1832; Langton v. Dove, 20 D. 1188.

Page: 248↓

At advising—