Scottish Court of Session Decisions

This was a special case, the parties to which were (1) Lady Ramsay Gibson Maitland, widow and executrix of Sir Alexander Ramsay Gibson Maitland of Barnton and Cliftonhall, Bart.; and (2) Sir James Ramsay Gibson Maitland, her son, heir of entail in possession of Barnton and other estates. Sir Alexander died on 16th May 1876. He was in possession of several entailed estates. Barnton estate was burdened with £32,000, being the balance of debt heritably secured thereon. The debt was secured, in terms of a Private Act, by bonds and dispositions in security over the fee of the estate in ordinary form. It was also burdened with an annuity to the Honourable Mary Ramsay, widow of William Ramsay Ramsay of Barnton, of £3571, 8s., secured to her by virtue and in terms of the Aberdeen Act. The annuity was payable, as the bond bears, “at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first term's payment thereof at the first term of Whitsunday or Martinmas after his decease, and so forth half-yearly,” &c.

The estate of Cliftonhall was burdened with two sums of £2000 and £1000, as improvement debt under the Montgomery Act, by Alexander Maitland, constituted by a decree assigned by him to lenders. Sir Alexander also provided under the Aberdeen Act to the first party, as his widow, a liferent provision by way of annuity of £600 from the Cliftonhall estates, and of £2400 from the Barnton estates, the first half-yearly payments of both which annuities commenced at Martinmas 1876, and were declared to be payable to her as in advance. The lands held in fee-simple were burdened with certain sums of debt, secured by bonds and dispositions in security in ordinary form.

The entailed estates were further burdened with various sums expended in drainage and other improvements, which were charged upon the estates by virtue and in terms of the Improvement Statutes, and particularly 27 and 28 Vict. cap. 114, sec. 66. Part of the principal and the interest of the sums so expended were payable in half-yearly instalments at various dates throughout each year, the first half-year's payment beginning, in the case of each rent-charge, six months after the time when the works in respect of which the same was granted were executed to the satisfaction of the Commissioners under the said statute. It was agreed between the parties to the case that one-half of the rent-charges should be held as constituted under the above-mentioned statute, and one-half of the same under the Statute 12 and 13 Vict. cap. 100, sec. 21.

The rents and feu-duties receivable at Whitsunday 1876 were accredited to Sir Alexander, and the burdens due at that date were paid out of his funds. His executrix confirmed to the following rents, viz.:—(1) Farm rents payable under the leases at Lammas 1876, being for second half of crop 1875, and possession from Whitsunday to Martinmas 1875; amount £3050. (2) Farm rents payable under the leases at Martinmas 1876, being for first half of crop 1876, and possession from Martinmas 1875 to Whitsunday 1876; amount £5136. (3) Farm rents payable under the leases at Candlemas 1877, being for first half of crop 1876, and possession from Martinmas 1875 to Whitsunday 1876; amount £2658.

The grass parks on Barnton had been let in February 1876 for the then ensuing season at a rental of £981. The offerers had had the option of paying forehand under discount, or of granting bills payable on 1st November. About two-thirds of the rent had been paid in cash, and the remaining third in bills. The grass parks on Cliftonhall had been let for the season 1876 at a rental of £135. The rents were payable at Martinmas 1876. It was stated that all the said grass rents or maills fell, on the authority of Swinton v. Qawler, 20th June 1809, F.C., to be divided equally between the first and second parties, and it was further stated that the first party made no claim for any apportionment of rents in respect of the one day's survivance and possession after the term of Whitsunday 1876.

The rents conventionally payable after the death of Sir Alexander down to and inclusive of Martinmas 1876, were disposed of as follows, viz:—At Lammas 1876 and at Martinmas 1876 Lady Maitland drew the rents payable at these terms, amounting to £8186, and Sir James, on the other hand, drew down to and at Martinmas 1876 rents amounting to £826. Of the rents conventionally payable during the half-year from Martinmas 1876 to Whitsunday 1877 the executrix drew only the Candlemas rents, amounting to £2658. All the remainder .of the half-year's rental, payable down to and at Whitsunday 1877, being the greater part thereof, fell to Sir James. The payments due after the death of Sir Alexander Maitland were as follows:—

(1) Interest on entail and improvement debt, heritable bonds, &c. referred to above, for the half-year to Martinmas 1876, payable at same term—amount, £1175; and the like amount of half-yearly interest due at Whitsunday 1877.

(2) Annuities.—Half-year's payment of annuity to Honourable Mrs Ramsay, payable at Martinmas 1876, £1785,14s. Half-year's payment of annuity to Lady Maitland, payable at same term, £1500; and the like amount of the half-year's annuities to both annuitants, due at Whitsunday 1877.

(3) Feu-duty.—Half-year to Martinmas 1876, £9.

(4) Poor-Rate, School-Rate, $c.—For the year from Whitsunday 1876 to Whitsunday 1877—amount, £438.

(5) County Rates.—For same period; amount, £277.

(6) Stipends.—Crop 1876, amount £424; payable in March 1877.

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(7) Drainage Rent-Charges, referred to above—For previous half-years ending respectively at sundry dates between June and Martinmas 1876—amount, £499; and for previous half-years ending respectively at sundry dates between Martinmas 1876 and June 1877—amount, £560.

(8) Heritors' Assessment.—Cramond parish; amount, £37; imposed by consent of the heritors 30th June; paid 17th July 1876. This assessment was imposed partly to meet debts incurred prior to Whitsunday 1876 and partly to provide for the expenditure of the year following 30th June 1876—in equal proportions.

(9) Statute Labour Conversion Money.—For year 1876; amount £18; paid 6th October 1876.

(10) Land Tax.—For year from 25th March 1876 to 25th March 1877; payable 1st January 1877; amount, £13.

(11) Property Tax.—Year from 5th April 1876 to 5th April 1877; payable 1st January 1877; amount, £226; amount for personal occupation by landlord, continued by the second party, £52.

The Special Case proceeded (Art X.):—“It is maintained by the first party that the liability of the executry for the annual or other burdens on the lands above specified ceases as at Whitsunday 1876, and is limited to the burdens effeiring to the possession prior to that term. On this view the first party is not liable for any part of the (1) interest, (2) annuities, (3) feu-duty, (4) poor and school rates, (5) county rates, and (8) Cramond heritors' assessment, all as above mentioned; and the first party is liable only for such part of the (6) stipends, (7) drainage rent-charges, (9) statute labour conversion money, (10) land tax, and (11) property tax, as effeir to the possession prior to Whitsunday 1876.” (Art. XI.)—“On the other hand, it is maintained by the second party that the burdens in question are proper deductions from the rents falling to the executrix, and conventionally payable after the death of Sir Alexander, and that the executrix can only draw these rents on condition of discharging the said burdens therefrom. The second party accordingly maintains as chargeable against the first party a proportion of the (1) interest and (2) annuities for the half-years before mentioned corresponding to the amount of rent drawn by the first party down to the terms of Martinmas 1876 and Whitsunday 1877 respectively; that the first party is also liable for (3) feu-duty, (6) stipends, (7) drainage rent-charges, (8) Cramond heritors' assessment, and (9) statute-labour conversion money, all as above mentioned; and that the first party is also liable for one-half of (4) poor and school rates, and (5) county rates. The second party also maintains that the first party is liable for the whole amount of the (10) land tax and (11) property tax, in respect Sir Alexander survived the dates 25 th March and 5th April respectively, from which these taxes are imposed.”

Argued for Sir James Maitland—The burdens were upon the rents, and the person who drew the rents must pay the burdens.—Lady Maitland £8000, Sir James £800. [ Lord Gifford—Suppose there had been no postponement, quid juris? I should like to be satisfied that the conventional postponement makes any difference.] Whatever rent was due at a certain time, that rent must bear the burden. [ Lord Gifford—All the old cases were decided upon the legal, not upon conventional terms. ] The principle of deduction to be found in Paul v. Anstruther was what was founded upon. It was a rent-charge solely. [ Lord Gifford—Each must pay the burden effeiring to his possession.] [ Lord Justice-Clerk referred to the case of Campbell v. Campbell.] The statutory rent-charges were in the same position as the other burdens. [ Lord Gifford—The intermediate payments, not those at each term, are the difficulty.] Under the Apportionment Act nothing but “arrears” are recoverable. [ Lord Justice-Clerk—There is no question of arrears here.]

Argued for Lady Maitland—There was no question as to the rents, only as to the burdens on them. The rents were legally due before the conventional term of payment. The question was at common law, not under the Apportionment Act. As to the annuities, they were both payable in advance. The result of the heir's contention would be that Lady Maitland would have to pay herself the first term of her annuity out of her own funds. As to the rents, the case of Paul v. Anstruther did not affect the matter. Take the case of an heritable bond with assignation of maills and duties. What rents would be allocated by that assignation? Surely those which became payable after the date of the loan, whatever crop they might be for. Otherwise there would be a period of free-rent, such as was here claimed, The real principle of Paul v. Anstruther was, that he who took the accruing benefit bore the accruing burden.

Authorities—Connell on Teinds, ii. 83–95; Poor Law Act, 8 and 9 Vict. cap. 83, sec. 37; Improvement Acts, 12 and 13 Vict. cap. 100, sec. 21, 27 and 28 Vict. cap. 114, secs. 25, 26, 27. 51, 62, 66, 76; Stephen's Comms. i. 674; Apportionment Act, 4 Will. IV. cap. 22, sec. 2; Hard v. Anstruther, 14th November 1862, 1 Macph. 14, reported as Paul v. Anstruther, 2 Macph. (H. of L.) 1; Campbell v. Campbell, 18th July 1849, 11 D. 1426.

The point with reference to the annuities was first argued.

At advising—