Scottish Court of Session Decisions

This was an action of declarator and for payment of a composition, raised by the trustees of the late Walter Ferrier, W.S., against George Bayley of Manuel, W.S. The question arose under the following circumstances:—Until 1832 the lands of Manuel belonged to Principal Baird, grandfather of the defender. He was duly infeft in them, and held of the late Walter Ferrier by tenure of feu-farm. The superiority was at the date of this case in the pursuers as testamentary trustees of Mr Ferrier. Principal Baird in 1832 sold to his son-in-law Isaac Bayley the dominium utile of the lands, and granted, on May 12,1832, a disposition containing an obligation to infeft a me vel de me, and a procuratory of resignation and precept of sasine. Upon this precept Mr Bayley was infeft. He died in 1873, and his trustees made up a title to the lands by notarial instrument recorded 15th December 1873, and subsequently conveyed them to the defender George Bayley on 27th December 1873, he being infeft on 19th January 1874. Isaac Bayley did not enter with the superiors as vassal, but in 1868 Thomas Elder Baird was entered as vassal by precept of clare constat as eldest son and nearest lawful heir of Principal Baird, and was infeft. This was a voluntary entry by Mr Baird, the effect being that so long as he lived the pursuers could not call upon the defender to enter as vassal, the fee being already full. In January 1876 Mr T. E. Baird died, and his nephew George Bayley was his heir-at-law, and therefore heir under the original investiture in favour of his grandfather Principal Baird, while at the same time, as already mentioned, he was infeft in the dominium utile of the lands as singular successor of his grandfather. The summons concluded for declarator that in consequence of the death of Thomas Elder Baird, who was the vassal last entered and infeft in the lands of Manuel, under the operation of the law as it stood prior to the passing of the Conveyancing Act 1874, a casualty, being one year's rent, became due to the pursuers as superiors of the lands; that the casualty was still unpaid, and that the full rents, mails, and duties of the lands did, after the date of citation, belong to the pursuers until the casualty was paid.

The pursuers pleaded—“(1) The pursuers being superiors of the lands described in the summons, are entitled to decree of declarator as concluded for. (2) The defender having become, by virtue of the fourth section of the Conveyancing Scotland Act 1874, the vassal of the pursuers, and having refused to pay the composition which became due upon the death of the last entered vassal, the pursuers are entitled to decree for the sums concluded for, or for such other sum as shall be found to be the true and just amount of one year's rent, subject to the usual deductions, with expenses. (3) The pursuers are entitled to draw the full rents, maills, and duties of the said lands described in the foregoing summons from and after the date of the defender's citation. (4) The defender, as a singular successor in the lands described in the foregoing summons, is liable to the pursuers in a composition of one year's rent.”

The defender pleaded—“(1) The pursuers are not in the position of parties entitled under the provisions of the Conveyancing Act 1874 to raise the present action. (2) The defender being the heir-at-law of the last entered vassal, and willing to enter or to pay the duty exigible on the entry of an heir, is not liable to pay a composition as a singular successor. (3) The sum sued for being greatly in excess of the rent of the lands of Manuel Miln, of which the pursuers are superiors, decree therefor cannot be pronounced.”

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 21 st November 1876.—The Lord Ordinary,” &c., “Finds, decerns, and declares that, in consequence of the death of Thomas Elder Baird, Esquire, who was the vassal last entered and infeft under the operation of the law as it stood prior to the passing of the Conveyancing Act 1874, in All and Whole the mill of Manuel, called Manuel Mill,” &c., “a casualty, being one year's rent, became due to the pursuers, as the late Mr Walter Ferrier's trustees, as superiors of the said lands, upon the 18th day of January in the year 1876, being the date of the death of the said Thomas Elder Baird, and that

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the said casualty is still unpaid; and that the full rents, maills, and duties of the said lands of Manuel Mill and others,” “after the date of this interlocutor, do belong to the pursuers, as superiors thereof, until the said casualty and the expenses of this process be otherwise paid to the pursuers, and decerns; and before further answer as to the petitory conclusions of the summons, appoints the cause to be enrolled, that the amount of one year's rent of said lands may be ascertained, reserving in the meantime all questions of expenses.”

Note.—This action raises a question of very general interest and importance as to the construction of the 4th section of the Conveyancing (Scotland) Act 1874. The question is whether a proprietor of lands who is a singular successor of a former vassal, and who was infeft in the lands but not entered with the superior at the commencement of the Act, such infeftment being declared by the statute to be equivalent to an entry with the superior by confirmation, can defeat the demand of the superior for payment of the casualty of composition due by a singular successor by offering the heir of the original vassal for entry by writ of clare constat, or by infeftment on a special service as heir, on payment of the relief duty alone. There are some specialties in the case which may require particular consideration, but I think that the general question, as I have stated it, is fairly raised, and must be decided.

I do not think that the accident by which the defender held this double character at all affects the position of the parties, because the estates to which he would (prior to the commencement of the Conveyancing Act of 1874) have had a right in these two characters would have been entirely different. The estate to which he has right as the singular successor of Principal Baird is the dominium utile or the true property of the lands which he holds in virtue of the settlement of his father, who purchased them from Principal Baird, whereas the only estate which he could have taken as heir of his uncle T. E. Baird was the barren unsubstantial estate of mid-superiority created by Mr Isaac Bayley's base infeftment on the disposition from Principal Baird, which contained a double manner of holding and a procuratory of resignation and a precept of sasine; which infeftment had never been confirmed. The defender's position as regards the pursuers' demand, that he should enter with them as their vassal as the singular successor of Principal Baird, would have been substantially in principle the same if, instead of the defender himself, a third party had been the heir of T. E. Baird.

Now, if the Conveyancing Act of 1874 had not passed, the following would have been the position of the rights and liabilities of the pursuers and defender. In the first place, the barren estate of mid-superiority which remained with Principal Baird after the sale to Mr Isaac Bayley, and which was taken up by Thomas Elder Baird as heir of his father in 1868, would have been defeasible at any time at the pleasure of Mr Isaac Bayley or his trustees or the defender, and might have been evacuated by any of them obtaining their respective infeftments confirmed by the pursuers as the proper superiors, or by their resigning on the procuratory in Principal Baird's conveyance notwithstanding the intermediate entry given by the pursuers to Mr T. E. Baird as heir of his father. ( Fullarton, 22d Nov. 1833, 12 S. 117.)

In the second place, the pursuers as superiors would now have been entitled to call upon the defender to enter with them as their vassal, and to pay the composition of a year's rent, as being the singular successor of Principal Baird, and to enforce that claim by a declarator of non-entry against him; and it is the fair and necessary deduction from)the case of Fullarton that the intermediate entry of T. E. Baird would have formed no bar against such an action.

But, in the third place, so long as the estate of mid-superiority referred to was not evacuated, the defender would have been entitled to meet the superior's demand by putting forward the heir of the original disponer, that is, the heir of the original investiture, to enter in that character, although the superiors could not have compelled the heir to enter. It is hardly necessary to refer to authorities in support of these propositions; but as this case may go elsewhere I think it right to notice that they are distinctly affirmed as being the recognised rules of law by Professor Bell in his Principles, on the authority of the cases of The Magistrates of Mussel burgh, 21st Feb. 1804, Mor. p. 15, 038; Hill v. Mackay, 5th Feb. 1824, 2 S. G81; Piggot v. Colville, 9th Dec. 1829, 8 S. 213; and Dundas v. Drummond, 10th Feb. 1709, Mor. p. 15, 035. Professor Menzies, p. 814, and Professor Mongomerie Bell, p. 1055, state the law in similar terms; and although Mr Duff, p. 217 (who, however, does not notice the case of Hill or of Piggot) indicates a somewhat different opinion, the law as stated by Professor Bell was fully recognised in the case of Hyslop v. Shaw, 13th May 1863, 1 Macph. 535, which was decided by the whole Court. For although the point there decided (by a majority of nine to four of the whole Judges) was, that where aj party had disponed lands to a purchaser by a conveyance, with an a me vel de me holding on which the purchaser was infeft, who, without being confirmed, paid the feu-duties for some years to the superior, the disponer was not by that unconfirmed transference of the feu liberated from liability for the prestations of the feu-right; and that the superior was not, by accepting payment from the purchaser, barred from claiming against the disponer—six of the Judges in the majority, viz., the Lord Justice-Clerk (Inglis), and Lords Cowan, Deas, Benholme, Neaves, and Mackenzie, and one of the Judges in the minority, viz., Lord Curriehill, expressly stated the law applicable to the point now under discussion to be, that the heir of a disponer who had granted a disposition with a double manner of holding was entitled to enter with the superior so as to save the disponee from the payment of the composition of a year's rent. None of the other Judges indicated any dissent from the proposition so laid down; and the majority of the Court plainly considered that state of the law to be an important element in their judgment. It is thus quite clear that if an action of declarator of non-entry had been now brought against him by the pursuers, the defender George Bayley, but for the provisions of the Conveyancing Act of 1874, would have obtained absolvitor from the conclusions of such action by offering to enter as heir of his uncle Thomas Elder Baird, and the pursuers could not have insisted upon his entering as

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a singular successor or paying the composition of a year's rent.

This being so, the general question to be solved is, whether the Act of 1874 has made any, and if so what, alteration upon the respective rights and liabilities of parties in the position of the present pursuers and defender? The question turns entirely upon the construction of section 4 of the statute, and of Schedule B appended to the statute. Section 4 is divided into four sub-sections. Sub-section 1 abolishes renewal of investiture, and declares it to be incompetent for the superior to grant any writ by progress, with an exception in favour of certain writs, and, inter alia, writs of clare constat. Sub-section 2 provides ‘that every proprietor who is at the commencement of this Act, or thereafter shall be, duly infeft in the lands, shall be deemed and held to be as at the date of registration of such infeftment in the appropriate Register of Sasines duly entered with the nearest superior whose estate of superiority in such lands would according to the law existing prior to the commencement of this Act have been not defeasible at the will of the proprietor so infeft, to the same effect as if such superior had granted a writ of confirmation according to the existing law and practice.’

Now, before considering the remainder of this enactment, it is desirable to see what the effect would have been according to the then existing law and practice, if on the 1st of October 1874 the pursuers had granted in favour of the defender George Bayley a writ of confirmation of his infeftment which had been recorded in January 1874. That confirmation would, in the first place, have confirmed the defender's own base infeftment, and all the prior base infeftments, in the property of the lands, up to and including the infeftment taken by Mr Isaac Bayley on the precept in Principal Baird's disposition. In the second place, it would farther have evacuated the estate of barren mid-superiority, which had remained with Principal Baird after the sale of the lands to Mr Isaac Bayley, and which was afterwards taken up by Mr T. E. Baird in virtue of his entry in 1868, but which had all along been defeasible at the will, first, of Mr Isaac Bayley, afterwards of his trustees, and finally of the defender George Bayley. In the third place, it would have entirely liberated and absolved Principal Baird and his heirs from all liability for the feu-duties and prestations contained in the original feu-right, and would have transferred to Mr George Bayley the sole and undivided liability for these feu-duties and prestations. And, in the fourth place, it would have operated as a complete discharge of all casualties and arrears of feu-duties and other prestations due and payable at and prior to the date of the confirmation, unless in so far as these were expressly reserved in the charter.

In so far as regards the first and second of these effects, viz., the confirmation of all the base infeftments and the evacuation of the defeasible estate of mid-superiority which then existed in the person of Thomas Elder Baird, I think there is nothing in any part of the statute to prevent these effects from following the confirmation which the statute implies in every registered infeftment. But as regards the other two effects of confirmation, the statute contains express provisions and qualifications. Thus, in a subsequent part of sub-section 2 it is provided ‘that notwithstanding such implied entry, the proprietor last entered in the lands, and his heirs and representatives, shall continue personally liable to the superior for payment of the whole duties affecting the said lands, and for performance of the whole obligations of the feu, until notice of the change of ownership of the feu shall be given to the superior.’ And in subsection 3 it is enacted that ‘the implied entry shall not prejudice or affect the right or title of any superior to any casualties, feu-duties, or arrears of feu-duties which may be eligible from the-lands at and prior to the date of entry,’ … ‘but provided always that such implied entry shall not entitle any superior to demand any casualty sooner than he could by the law prior to this Act or by the conditions of the feu-right have required the vassal to enter or to pay such casualty irrespective of his entry.’ And in sub-section 4 it is declared that such implied entry shall not be pleadable in defence against the superior's action for a casualty. The meaning of these sub-sections, when read together, is, in my opinion, that the entry by confirmation which the statute declares shall be implied in the infeftment of every proprietor infeft in lands at or after the commencement of the Act, shall have the effect of for ever extinguishing the defeasible estate of mid-superiority created by the original conveyance from a former vassal with a double manner of holding; that notwithstanding the implied entry the superior is not to be deprived of his right to the composition which he would have been entitled to demand had he actually granted a writ of confirmation, but that, in the event of any person holding the position of an entered vassal being in life, whether he was the original disponee or his heir or a liferenter, or any other person, the superior's right to demand payment of a casualty should be postponed until the death of such entered vassal.

Now, had the Act stopped there, I should have had little hesitation in holding that the defeasible estate of mid-superiority which stood in the person of T. E. Baird was, from the 1st October 1874, so completely evacuated that on his death in 1876 nothing remained in his person which could be taken up by his heir either by service or by precept of clare constat from the superior; and that the defender George Bayley would have had no good defence against the pursuer's demand for payment of a casualty as the singular successor of the original vassal in the lands. The defender, however, maintains that in the present case this result is excluded by the language of sub-section 4, which must therefore be carefully and critically examined.

That sub-section provides that ‘no lands shall after the commencement of this Act be deemed to be in non-entry; but a superior who would but for this Act be entitled to sue an action of declarator of non-entry against the successor of the vassal in the lands, whether by succession, bequest, gift, or conveyance, may raise in the Court of Session against such successor, whether he shall be infeft or not, an action of declarator, and for payment of any casualty exigible at the date of such action, and no implied entry shall be pleadable in defence against such action.’ … And the summons in such action may be in or

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as nearly as may be in the form of Schedule B hereto annexed.’ In the schedule the person who stands as pursuer is ‘A ( design him), immediate lawful superior of the lands ( or subjects) after described (or referred to), and duly infeft therein;’ and the defender is simply mentioned as ‘B ( design him).’ From the terms of sub-section 4, already cited, it is clear that the defender ‘B’ is to be the ‘successor of the vassal in the lands, whether by succession, bequest, gift, or conveyance,’ against whom the pursuer, as superior, would, but for the Act, have been entitled to sue an action of declarator of non-entry. The conclusions as given in the schedule are, first, for declarator ‘that, in consequence of the death of C ( or otherwise as the case may be), who was the vassal last vest and seised in All and Whole the lands of X,’ … ‘a casualty, being one year's rent of the lands, became due to the said A, as superior of the said lands, upon the day of, being the date of the death of the said C (or) the date of the infeftment of the said B in the said lands of X ( or otherwise as the case may be), and that the said casualty is still unpaid;’ and then follow conclusions as to the rents during nonpayment of the casualty, and a petitory conclusion for payment of a year's rent.

Now, the first observation which occurs upon the language of the schedule, and the enacting words of sub-section 4, after the declaration that no lands shall after the commencement of the Act be in non-entry, is that the person who is to be entitled to raise an action of declarator and for payment of the casualty is a superior who would but for the Act be entitled to sue an action of declarator of non-entry against the successor of the ‘vassal in the lands, whether by succession, bequest, gift, or conveyance.’ But if the explanation which I have given in a former part of this note as to the relative positions and rights of the pursuers and defender according to the law and practice prior to 1st October 1874 be correct, it does not admit of doubt that the pursuers but for the passing of the Act would have been entitled on the death of Thomas Elder Baird, to sue an action of declarator of non-entry against the ‘successor of the vassal in the lands,’ i.e., against the defender as the singular successor of Principal Baird, the former vassal. The defender, however, maintains that, according to the sound construction of sub-section 4, read in connection with the words of Schedule B, the person there referred to as ‘the vassal in the lands,’ whose successor might have been sued in a declarator of non-entry, and who is to be the defender in the new action substituted therefor by the statute, is the person who had been last recognised in that character by the superior, viz., Thomas Elder Baird; and that as the defender is in no respect the successor of Thomas Elder Baird except as being his heir to the barren mid-superiority of the lands, the superiors cannot under the new law direct their action of declarator and for payment of a casualty against him as a singular successor of the last-entered vassal, but only as his heir, and as he has all along been willing to enter as heir, the present action was uncalled for and unnecessary. But this argument of the defender proceeds, in my opinion, on a mistaken reading both of the Act and of the schedule. There is nothing in the schedule to indicate that ‘B,’ who is to stand defender in the action, is necessarily the successor, either as heir or by bequest, gift, or conveyance of ‘C,’ the last-entered vassal, in consequence of whose death the casualty has emerged. The casualty is, according to the structure of the summons, to be paid by ‘B,’ not as the successor of ‘C,’ but on the occasion of the death of ‘C,’ in consequence of which the superior has no longer an entered vassal.

In order rightly to understand this question it is necessary to bear in mind that by sub-section 2 the defeasible estate of mid-superiority which alone stood in the person of Thomas Elder Baird as at 1st October 1874 was then absolutely extinguished, so that as regards the lands included in his own infeftment the defender George Bayley thereafter occupied the position of being the singular successor of Principal Baird, the former vassal in these lands, and of being entered as such singular successor with the pursuers as his superiors. In short, the implied statutory confirmation made public the defender's base infeftment which had flown from Principal Baird, the former vassal. It appears to me that one of the main objects of this statute was not only to facilitate conveyancing, but to abolish the creation of mere technical base fees and midsuperiorities which, by a rigid adherence to old feudal forms, had complicated and encumbered progresses of titles without conferring any real benefit upon any of the parties concerned. And it seems to follow as one necessary result of the provisions of the Act, that the right of a superior to the composition of a year's rent at the entry of a singular successor shall be no longer liable to be evaded by an arrangement between the disponee and the heir of the disponer, by which the latter should ignore the disposition of the substance of the lands granted by his ancestor, and maintain as against the superior the shadowy character of heir to a barren and merely technical estate of mid-superiority. The action therefore may, in my opinion, be competently directed against the party who is truly the successor of the former vassal in the property of the lands.

But even were it necessary, in construing the statute and the schedule, to hold that the defender in an action like the present must be the successor of the person last entered as vassal by the superior, I should be of opinion that the defender is truly the successor of T. E. Baird in the lands themselves, because, as was forcibly pointed out by Lord Moncreiff in the case of Fullarton already referred to, the heir of a disponer who takes an intermediate entry by precept of clare constat after his ancestor has sold the property to a purchaser is truly eadem persona with his ancestor, and must be so regarded in all questions between the purchaser and the superior.

On the whole matter, then, I am of opinion that the effect of the statute in reference to the present case is—(1) That the defeasible midsuperiority held by T. E. Baird was absolutely and for ever extinguished; (2) That from and after 1st October 1874 the lands were held by Mr George Bayley, the defender, of the pursuers as his immediate lawful superiors, as the singular successor of Principal Baird, the former vassal, in virtue of the implied confirmation by them of his infeftment, which flowed from the precept of sasine contained in the original disposition granted by Principal Baird; (3) That owing to

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an intermediate entry having been given by the pursuers in 1868 to T. E. Baird as heir of Principal Baird by precept of clare constat, their right as superiors to demand a casualty of a year's rent from the defender, as singular successor of the Principal was postponed until the death of T. E. Baird; and (4) That the pursuers, who in accordance with the law as it existed prior to 1874 would have been entitled to sue a declarator of non-entry against the present defender as the singular successor of the vassal in the lands, are now entitled to raise against him the present action of declarator and for payment of the casualty due by a singular successor, and to prevail. But as the question is a novel one, and has not been unreasonably litigated by the defender, I think that the rents should not be decreed to belong to the pursuers from the date of citation, but only from the date of this interlocutor.

It will be observed that my opinion has been very much influenced by the consideration that in consequence of Mr Bayley being infeft in the lands the confirmation implied in his infeftment extinguished the mid-superiority which had existed in Mr T. E. Baird. Whether I might have arrived at the same result if Mr Bayley had not been infeft is a question on which I express no opinion.

“The case is appointed to be enrolled in order that the precise amount of the year's rent payable as composition may be ascertained. In the meantime all questions of expenses are reserved.”

The defender reclaimed.

Authority quoted— Fullarton, 22d Nov. 1833, 12 S. 117.

At advising—