Scottish Court of Session Decisions

In this case the Right Honourable John Campbell Gordon, Earl of Aberdeen, proposed to enter with the Crown by writ of confirmation following on a disposition, dated 24th January 1872, executed by himself in favour of himself and the heirs-male of his body and the others therein mentioned of the entailed lands and barony of Haddo and others. The Crown declined to grant an entry except upon payment of the non-entry duties since the death of the last-entered vassal, and to this payment the Earl of Aberdeen objected. The last-entered vassal was the objector's grandfather George Hamilton Gordon, Earl of Aberdeen, who died in 1860. By deed of propulsion, dated 2d December 1854, he disponed in favour of his eldest son G. J. J. H. Gordon, then Lord Haddo, afterwards Earl of Aberdeen, the foresaid lands of Haddo, with the exception of the lands of Gight and Tolquhon, and the disponee was infeft in the lands propelled. G. J. J. H. Gordon, Earl of Aberdeen, died on 2d March 1864, and was succeeded by his eldest son, the objector's brother George Gordon, Earl of Aberdeen, who made up his title to the lands contained in the deed of propulsion by decree of special service as nearest and lawful heir-male of tailzie and provision in special of his father, and to the lands of Gight and Tolquhon as nearest and lawful heir-male of tailzie and provision in special to his grandfather, both deeds dated and recorded in 1864. George Gordon, Earl of Aberdeen, died on the 27th January 1870, and was succeeded by his brother, the objector, who made up his title to the lands contained in the deed of propulsion, by decree of special and general service as heir of entail and provision to his brother, recorded in Chancery 27th July, and in the General Register of Sasines 25th August 1871; but a doubt having been suggested as to the validity of his brother's service, the objector also expede a service to his father conform to decree of special and general service in his favour as heir of provision of his father, recorded as aforesaid. He also completed his title to the lands of Gight and Tolquhon as heir of tailzie and provision to his brother. The objector being then infeft in the whole of the lands in question, with the view of consolidating his title, granted in his own favour the disposition upon which the present question arose. He averred—“That prior to the passing of the Crown Charters Act (10 and 11 Vict. c. 51) in 1847 entries were obtained from the Crown either through the Director of Chancery, who granted Crown precepts, or through the Barons of Exchequer, who granted Crown charters. When the entry was obtained through the Barons of Exchequer non-entry duties were in no case charged. On the other hand, when the entry was obtained through the Director of Chancery non-entry duties from the date of the death of the last entered vassal were charged. In the present case the entry, if sought prior to the passing of the Crown Charters Act, would have been obtained through the Barons of Exchequer, and no non-entry duties would have been payable. The Presenter of Signatures now acts in place both of the Director of Chancery and of the Barons of Exchequer, but in this case he is acting in place of the Barons of Exchequer, and has no right to demand any duties which would not have been exigible if the entry had been granted by them.” The objector further explained—“Prior to the passing of the Titles to Land (Scotland) Act 1858 the necessary deed would have been a charter of confirmation, and being a charter it would necessarily have been granted by the Barons of Exchequer, who alone granted charters. By the said Titles to Land (Scotland) Act, and the Titles to Land Consolidation (Scotland) Act 1868, ‘writs’ have been substituted in place of charters. Moreover, from the preceding statement of the state of the objector's title it is clear that if he had been entering with the Crown prior to the change of the law in 1847, he could not have entered by obtaining a precept from Chancery. It was only the heirs of parties who were entered with the Crown who could make up a title in that way. If, therefore, the objector had been obtaining this entry before 1874, he could not have been called upon to pay non-entry duties, because he would not have entered by precept from Chancery, and none of the Acts above referred to contains any provision for the payment of non-entry duties in cases in which these duties were not formerly payable.”

The objections for the Earl of Aberdeen were in the following terms:—“(1) Because prior to the passing of the Crown Charters Act the objector, having regard to the state of his title, would have entered with the Crown by a charter from the Barons of Exchequer, in which case no non-entry duties were ever exacted or paid, and he is now entitled to an entry on the same terms. (2) Because in no case were non-entry duties payable to the Crown on granting a charter of confirmation, and they are not now exigible on granting a writ of confirmation, which is equivalent to and has come in place of such charter.”

The Lord Advocate on behalf of the Crown pleaded—“The duties in question being due and exigible, the objector is entitled to an entry only upon payment thereof, and accordingly the objections which have been proponed ought to be repelled.”

The Lord Ordinary ( Gifford) repelled the objections.

His Lordship added the following note;—There is no objection stated in the present case to the form or terms of the Crown writ of confirmation as revised and adjusted by the Presenter of Signatures. The objections are confined to the amount of non-entry and other

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duties marked thereon as payable, viz., £228, 15s. 91d. sterling. This sum is objected to to the extent of £2082, 4s. 9fd. Scots, or £173, 10s. 5d. ° sterling. There is an additional objection to another £477, 10s. Scots, or £39, 15s. 10d. sterling.

“On going into detail, however, there is no objection to the calculation of duties. The objections are all, in point of principle, that the duties admitted to be rightly calculated are not in point of law due by the vassal to the Crown.

The main objection relates to l1 1 2 years' non-entry duties, or rather to 12 years' non-entry duties (for another half-year was added by the Presenter of Signatures) claimed by the Crown, amounting to £2082, 4s. 9fd. Scots. The Earl of Aberdeen maintains that these non-entry duties are not due by him at all, and he pleads alternatively that even if due they must be made good by a separate process against the lands or otherwise, and cannot be recovered by withholding the Crown writ of confirmation. He pleaded that he is entitled to instant entry as a singular successor on payment of the statutory composition of ten merks, and that being thus entered the Crown must adopt a new and separate process against him or against the lands for the purpose of recovering the non-entry duties, if the same are exigible at all.

The leading question is, Are the non-entry duties really due to the Crown?

The Lord Ordinary is of opinion that they are, and that so far the objections must be repelled.

It was admitted in argument, and seems clear in point of fact, that the lands have been in non-entry since the death of the old Earl of Aberdeen, who died on or about 14th December 1860. It seems to follow that non-entry duties are due to the Crown till the present objector enters. It is true that, as no action of non-entry has been raised, only the retour duties, or duties calculated on the valued rent, are due, and not the full rents, for rents can only be claimed in non-entry after citation. But nothing is asked in the present case but retour duties, or the duties that became due eo ipso from the fact of non-entry, whether declarator of non-entry should be ever raised at all or Rot. It was admitted in argument that if the Crown in 1873, or even now, should raise action of declarator of non-entry it would be entitled to instant declarator that the lands had been in non-entry since 14th December 1860, and that the arrears for non-entry duties, being the very duties now claimed, were due and payable furth of the lands up to the date of citation.

It further appears to the Lord Ordinary that as non-entry duties due before citation are debita fundi, and could be made good by a poinding of the ground or otherwise, and as there is no doubt as to the sufficiency of the estates, there was really no interest in anyone to discuss the question whether the claim can be made good in the present process or not. In short, the Lord Ordinary thinks that there is no defence against the Crown's claim for feu-duties.

But certain very ingenious pleas were insisted in for the objector, who demanded that an inquiry should be made, by proof or otherwise, into the practice of the Barons of Exchequer, and he alleged that this inquiry would show that by immemorial practice in cases like the present no non-entry duties were exigible.

The objector maintained that although in fact he was the heir of entail, yet as he claimed under a deed of propulsion he must be regarded as a singular successor, and he maintained that the Barons of Exchequer (to whom prior to the recent Act he would have applied for an entry) always granted charters to singular successors merely on payment of composition or taxed entry-duty, and never exacted non-entry duties at all. He asked fora proof of this, or at least an inquiry by a remit.

The Lord Ordinary refused such a proof or remit, because he does not think the allegation relevant. It may very possibly be true that the Barons of Exchequer rarely exacted non-entry duties, and if so, the reason probably was that they seldom or ever had the means of knowing whether the lands were in non-entry or not. They had only to do with singular successors, and they probably never asked whether the author or disponer to such singular successor was dead or alive, but simply fixed the composition-duty as if the fee was full. In point of fact the fee would generally be full, for a singular successor, as a general rule, completes his Crown entry without waiting for the disponer's death, But the practice of the Barons of Exchequer, though it may have prejudiced the Crown's bygone rights, can never in any way affect or prejudice the Crown's present rights, its permanent rights as superior, or the general law of superior and vassal, and therefore the proposed inquiry is really immaterial.

When an heir applied for a Crown entry, he did so, not to the Barons of Exchequer, but in Chancery, and in such cases non-entry duties were always exacted when the lands had really lain in non-entry. Nothing can turn upon the mere form in which the entry was taken, or rather upon the practice of the particular Crown officer through whom the entry was applied for. It would be absurd to hold that non-entry duties are due when the Director of Chancery prepares the charter, and not due in precisely the same circumstances when the charter is adjusted by the Barons of Exchequer. It would, if possible, be still more absurd to hold that now when the functions of both these offices are discharged by the Presenter of Signatures he is to be bound by the varying practice of his various predecessors whose functions he now discharges.

The Lord Ordinary holds that the general law regulating the rights of superior and vassal, and the Crown rights as superior, cannot be affected by the past practice—it may be the bad practice—of Crown officials whose duties have been superseded. The Lord Ordinary applies the general law of superior and vassal to the present case, and he has no difficulty in holding that the bygone non-entry duties (admittedly rightly calculated) are due to the Crown, … .

There only remains the objector's contention, that although due, these various duties cannot be recovered by retaining the Crown writ. The Lord Ordinary thinks this plea also ill founded.

As already mentioned, there is really no interest to maintain such a plea, for as the duties are debita fundi, they could easily be declared and recovered by diligence, and it would be unreasonable to remit the parties to a new process when the question can easily be determined now and here.

But on its merits the plea is untenable. A superior is always entitled to retain a charter till bygone feu-duties or non-entry duties are paid. The vassal cannot claim the charter while he refuses to implement the vassal's obligations. The superior is not bound to receive a vassal who refuses to implement the conditions of the feu. The charter, if delivered without payment of bygones, might be pleaded on as implying their discharge. It might create a difficulty in the recovery of the bygone non-entry duties, for if the fee was once filled a declarator of non-entry could hardly be brought. But however this may be, it seems both law and equity that a superior should not be compelled to do his part as superior unless the vassal at the same time fulfil the obligations incumbent upon the vassal or upon the feu.”

The objector reclaimed.