Scottish Court of Session Decisions

This was an action at the instance of the Straiton Estate Co., proprietors of the lands of Straiton, against William Walker Stephens, merchant, Leith, sole accepting trustee under the trust-disposition and settlement of Peter Brash, who died on 8th November 1872, concluding for payment of (1) £824, 6s. 1d., and (2) £233, 16s. 5d., the former sum being the amount of the casualty, as ascertained in the previous process above noted, paid by the pursuers to W. H. B. Sivright, superior of the lands of Straiton, and the latter sum being the amount of the expenses incurred by the pursuers in that process. Of this sum of £233, 16s. 5d. the sum of £100, 3s. 6d. was the amount of the taxed expenses found due to the superior and paid by the pursuers, and £133, 12s. 11d. was the amount of their own agent's account.

The circumstances in which the action was raised are thus related in the note of the Lord Ordinary ( Curriehill):—“The late Peter Brash, merchant in Leith, died on 8th November 1872, duly infeft and entered with the superior in the Straiton estate, described in the summons. He left a trust-disposition and settlement dated 6th February 1869, with relative codicil dated 2d November 1872, by which he conveyed his heritable property, and inter alia the Straiton estate, to trustees, of whom the defender Wm. Walker Stephens, was the only acceptor. He made up his title to the estate by notarial instrument, recorded in the register of sasines 9th July 1873, but his title was never confirmed by the superior, and the lands which had fallen in nonentry continued in that condition until the commencement of the Conveyancing (Scotland) Act on 1st October 1874. By the operation of that statute, the defender, in virtue of his infeftment, became the duly entered vassal of the superior. Thereafter, by disposition dated 10th November 1876, he sold the lands to the pursuers, who expede infeftment therein by recording the disposition on the 15th of that month, and by the operation of the statute became the duly entered vassals of the superior.

“On 8th May 1877 William Henry Revell Bedell Sivright, the superior, raised a summons against the pursuers in the form prescribed by the Conveyancing (Scotland) Act 1874, concluding that it should be found and declared that, in consequence of the death of the said Peter Brash, the vassal last vested and seized in the subjects, a casualty, being a year's rent of the lands, became due to the superior on 15th November 1876, being the date of the infeftment of the pursuers, and concluding for payment of £1930, 19s. 2d. as the value thereof. After sundry procedure the Second Division pronounced an interlocutor on 8th July 1879, fixing the amount of the casualty at £824, 6s. 1d., with interest thereon at the rate of 5 per cent. from the date thereof till payment. The pursuers paid the amount to the superior with the expenses of process, and they have raised the present action against the defender to recover from him the amount so paid by them, and the expenses incurred by them to their own agents in defending the superior's action.

The grounds of this claim of relief are thus stated:—‘The defender was, at the period when the Conveyancing Act 1874 came into operation, liable in payment of a casualty or composition, being a year's rent of the subjects in question. This was a burden affecting the estate in the defender's hands, and for which decree might have been obtained against him by the superior. It was an implied condition of the contract of sale between the pursuers and defender that the pursuers should, upon payment of the agreed-on price, which was a full price, acquire the subjects free of all incumbrances; and this implied condition was, so far as regards casualties, made matter of express stipulation in the disposition of the subjects to the pursuers.’ The express stipulation here referred to is the short clause usually inserted in all onerous conveyances of land, and is as follows:—‘I bind myself, as trustee foresaid, and the trust-estate under my charge, to free and relieve the said disponees and their foresaids of all feu-duties, casualties, and public burdens.’ By the ‘Titles to Land Consolidation (Scotland) Act 1868,’ sec. 8, it is declared that a clause so expressed ‘shall, unless specially qualified, import an obligation to relieve of all feu-duties or other duties, or services or casualties, payable or prestable to the superior, and of all public, parochial, and local burdens due from or on account of the lands conveyed prior to the date of entry.’”

The pursuers pleaded—“(1) The defender having sold the estate of Straiton to the pursuers for a full price, and as an unencumbered subject, is bound to relieve them of the casualty which ought to have been paid by the defender on his entry to the lands. (2) In respect of the obligation of relief in the disposition by the defender to the pursuers, the defender is bound to relieve the pursuers as concluded for. (3) The pursuers, having incurred expenses in consequence of the defender having refused to relieve them when the claim was made, are entitled to recover the amount thereof, and, separatim, are entitled to the expenses beneficially incurred on the defender's behalf in reducing the amount of the said casualty.”

The defender pleaded, inter alia—“(2) The casualty sued for not having been due and payable at the date of the pursuers' entry, and not being a burden of which the pursuers are entitled to be relieved by the defender under their disposition, the defender should be assoilzied with expenses.” He also founded on a verbal agreement which, as he alleged, had been entered into at the time of the sale to the pursuers, that the latter should pay the composition if it should be demanded. “(4) On a sound construction of the disposition, and of the Conveyancing Act 1874, the defender is not in the circumstances bound to relieve the pursuers of the sums sued for, or any part thereof.”

The Lord Ordinary on 19th July 1880 pronounced this interlocutor:—“Having considered the cause, assoilzies the defender from the conclusions of the action, and decerns.” He added this note—“This action raises an important question as to the operation of sec. 4 of the Conveyancing (Scotland) Act 1874, in reference to the clause usually inserted in onerous conveyances

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of land binding the seller to relieve the purchaser ‘of all fen-duties, casualties, and public burdens.’ I had occasion to consider a similar question in the case of The Leith Heritages Company v. The Edinburgh and Leith Glass Company, my judgment (which was acquiesced in) being reported in the Scottish Law Reporter, vol. xiii., p. 731, under date 8th June 1876. The question, which is undoubtedly one of great and general importance, having been again very ably and anxiously argued in the present case, I deemed it right to reconsider with all possible care the views expressed in The Leith Heritages Company's case, but the result has been to confirm me in my former opinion.

[ His Lordship here narrated the circumstances leading to the action being raised, as printed above.]

“Now, it is important to keep in view that, by the law as it stood prior to the commencement of the Conveyancing Act of 1874, although lands fell into non-entry immediately upon the death of the last entered vassal, entitling the superior to the casualty of non-entry— i.e., to take and retain possession of the lands until the entry of the new vassal as heir or singular successor of the last vassal, and the payment by him of the relief or composition prestable in respect of such entry—the superior's right to the casualty consisted, to use the words of Erskine, merely of a ‘claim which must be made effectual by an action for declaring that the lands have fallen into non-entry.’ It must be observed, however, that this action was merely an indirect means of compelling the vassal's successor to enter and pay the composition, as the superior had no direct action to compel the successor either to enter or to pay the composition, the latter being only one of the conditions of entry. The lands therefore remained in non-entry, and in the hands of the superior, in virtue of his decree of declarator of non-entry, until the successor voluntarily came forward and asked to be received on payment of the composition.

In short, neither the casualty of non-entry nor the composition (and the two things are entirely different) would ever be said to be ‘payable or prestable’ to the superior until after his action was raised, and in the case of the composition, until the successor had shown his submission by asking to be received as vassal.

It is thus quite clear, that had the Conveyancing Act of 1871 not passed, the present pursuers, after paying the price and accepting the disposition from the defender, and taking infeftment thereon without reserving right to call upon the defender to complete any further title in his person, or to enter with the superior, would not, in the event of the superior raising against them an action of declarator of non-entry, have been entitled to insist upon the defender entering and paying the composition. It was no doubt not uncommon in practice for the purchaser, before accepting the disposition, to insist upon the seller entering with the superior and paying the composition.

But where the disposition was accepted without reservation, the lands remaining in nonentry, and no casualty was regarded as payable and prestable to the superior until an entry was demanded, or an action of declarator of non-entry was raised; and it was never heard of in practice that on such an action being raised the purchaser was entitled to call upon the seller to relieve him of the action and pay the composition. In short, by the law and practice prior to 1874 this was not one of the casualties falling within the clause of obligation to relieve of casualties, &c., contained in an ordinary disposition by a seller to a purchaser; indeed, such a claim of relief would have been clearly untenable, because the defender having been divested by the infeftment of the pursuers before any judicial demand for an entry had been made by the superior, the casualty of non-entry, and the payment of the composition of a singular successor, would not have been a casualty ‘payable or prestable’ by the seller to the superior prior to the pursuers' term of entry. The pursuers, however, maintained that the effect of the Conveyancing Act of 1874 was to make the casualty of the year's rent actually payable or prestable’ by the defender to the superior as at the passing of the Act on 1st October 1874, and therefore before the term of entry in the disposition, although no judicial demand was made by the pursuers until after that date; and they further maintain, that so soon as the judicial demand was made by the superior the defender's obligation to relieve them of casualties took effect, and entitled them to call upon him to relieve them of the casualty in question. On the other hand, the defender maintains that the statute did not, according to its sound construction, impose any such liability upon him as seller.

The present question depends upon the construction of chapter 4 of the statute and its subsections. Sub-section (1) declares the granting of writs by progress to be unnecessary for the completion of the title to land, and to be incompetent, and has thus rendered it no longer necessary for the heir or singular successor of a vassal to resort to the superior for an entry or renewal of the investiture as a necessary step in the completion of the title.

In order, however, to maintain the feudal relation between the superior and vassal, it is enacted in sub-section (2) that every proprietor duly infeft in the lands shall be deemed and held to be, as at the date of the registration of his infeftment in the register of sasines, duly entered with his immediate lawful superior, to the same effect as if such superior had granted a writ of confirmation according to the previously existing law, and that whether the superior's own title had been completed or not.

But as the granting and delivery of a writ of confirmation in the absence of any reservation of the claim for composition operated under the old law as a discharge of the composition, whether the same was paid at the time or not, sub-section 3 provides that ‘such 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 due or exigible in respect of the lands at or prior to the date of such entry; and all rights and remedies competent to a superior under the existing law and practice, or under the conditions of any feu right for recovering, securing, and making effectual such casualties, feu-duties, and arrears, … . shall continue to be available to such superior in time coming; 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

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this Act or by the conditions of the feu-right, have required the vassal to enter or pay such casualty irrespective of his entry.’ The term ‘casualty,’ I may mention, is declared by the interpretation clause of the Act to include the composition payable by a singular successor.

Sub-section 4 is as follows:—‘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 any decree for payment in such action shall have the effect of and operate as a decree of declarator of non-entry according to the now existing law, but shall cease to have such effect upon the payment of such casualty and of the expenses (if any) contained in such decree; but such payment shall not prejudice the right or title of the superior to the rents due for the period while he is in possession of the lands under such decree, nor to any feu-duties or arrears thereof which may be due or exigible at or prior to the date of such payment, or the rights and remedies competent to him under the existing law and practice for recovering and securing the same; and the summons in such action may be in, or as nearly as may be in, the form of Schedule B hereto annexed.’

According to the construction which the pursuers place upon these enactments, the sum of £824, 6s. 1d., being the casualty of a year's rent of the subjects in question, became on 1st October 1874 ‘payable or prestable’ to Mr Sivright as superior by the defender, as the proprietor then duly infeft in these subjects, although the superior had not demanded payment thereof, and that the same continued to be ‘payable or prestable’ by the defender to the superior even after the pursuers had purchased the property, and by the implied statutory confirmation of their own infeftment in 1876 had become themselves the duly entered vassals of the superior. I am of opinion that this is not the sound construction of the statute. It appears to me that what has been done by the various sub-sections of section 4 is to substitute for an actual entry by confirmation, given by the superior under the old form, and as equivalent thereto, an implied entry by force of the statute, taking effect on the completion of every infeftment; and further, to declare that notwithstanding the death of the last entered vassal and the non-infeftment of his successor the lands should not be held to be in non-entry. But in order to protect the right of the superior to his casualty of composition, which might have been held as extinguished by the statutory confirmation, and to take possession of the lands until payment of the composition, the statute substitutes for the old action of declarator of non-entry, in which the superior might have obtained decree of Court authorising him to enter into possession of the lands and appropriate the rents while the vassal lay out unentered, an equivalent action against the actual proprietor of the lands for the time, concluding for declarator that a casualty of a year's rent has become due, either by the death of the last entered vassal or by the infeftment of a new proprietor, and until the casualty is paid he is entitled to the rents of the property, and for decree against the proprietor for payment of the casualty personally.

Now, as I read these provisions of the statute, it is left in the option of the superior to determine whether he shall raise such an action against the immediate successor of his last entered vassal, or against some remoter successor, just as it was optional to him under the old law to allow one or more successors of the last vassal to lie out unentered without claiming composition or without raising a declarator of non-entry. Under the old law, as already explained, the casualty of nonentry did not become ‘payable or prestable’ until the claim was enforced by the superior in an action of declarator of non-entry. That action operated indirectly as a compulsitor upon the successor of the vassal to enter and pay the composition, because until he did so the superior was entitled to enter into possession of the lands and appropriate the rents; but until the action was raised the vassal was not regarded as contumacious, and was entitled to lie out unentered, to retain possession of the lands, and to withhold payment of the composition; and if he sold the lands to a purchaser who was infeft and took possession of the lands, the superior could not, with any effect, call upon the seller to enter or pay composition, and to make his right to composition effectual only by a declarator of non-entry against the purer chaser, who, on the other hand, had no claim of relief against the seller. Now, I think there is no material change in this respect introduced by the Statute of 1874. It appears to me that the vassal is not to be regarded as contumacious, and is not bound to pay the composition unless and until the superior demands it in an action in the statutory form—see Ferrier's Trustees v. Baillie, 4 R. 738. But against whom is that action to be raised? It is not necessarily against the immediate successor of the last vassal, but against the successor, whether infeft or not, against whom the superior would have been entitled to raise an action of declarator of non-entry under the old law; but, as we have seen, it was against the party in possession of the lands for the time that the declarator of non-entry was directed, although there might have been many intermediate proprietors between him and the last entered vassal; and I am clearly of opinion that under the Act of 1874 the defender in the action of declarator and for payment of the casualty is to be the party in possession of the lands at the time as successor, whether immediate or more remote, of the last entered vassal, and especially is this the case where the several successors in their order have been infeft in the lands. Each successive infeftment makes the person infeft the entered vassal of the superior, and dissolves the feudal relation which has subsisted between the superior and the proprietor previously infeft. It follows, therefore, that the new proprietor, if a singular successor of the last entered vassal, or his heir, becomes by virtue of his infeftment the party against whom the superior may raise his action to constitute the casualty of composition as a debt ‘payable or prestable’ to the superior.

It is true that the statute provides that the superior is not to demand a casualty sooner than

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he could ‘by the law prior to the Act or by the conditions of the fen-right have required the vassal to enter or to pay such casualty irrespective of his entry.’ But in the present case the superior did not demand the casualty sooner than under the old law he could have required the pursuers to enter. On the contrary, under the old law he might have required an entry from the defender long before the date of his action against the pursuers, but he did not so enforce his claim. Had he chosen to constitute his claim against the defender before he sold the lands to the pursuers, he would not have been entitled to demand the casualty from the pursuers during the defender's lifetime, because the defender would on that supposition have been in the position which under the old law would have been held by one duly entered by the superior as his vassal on payment of composition, during whose lifetime the superior could not have called upon a successor to enter. But though the defender had obtained implied entry by the operation of the statute, the superior did not, although entitled to do so, demand a casualty from him, and the statute expressly provides ‘that no implied entry shall be pleadable against the new action for the casualty.’ The meaning of that provision clearly is, that the proprietor infeft against whom the statutory action was raised is not only not to be entitled to plead his own implied entry by confirmation as a discharge of the composition, but is not to be entitled to plead that by the implied entry of any of his predecessors the action is excluded, unless some one of such predecessors still in life has paid the composition.

It appears to me, therefore, according to the sound construction of the Act of 1874, and of the obligation of the defender to relieve the pursuers of casualties contained in his disposition of Straiton—(1) That the casualty for which the pursuers were sued, and which they paid to the superior in 1879, was the casualty exigible from themselves in respect of their own implied entry; (2) That the demand for that casualty was not made by the superior sooner than he was entitled to do so; and (3) That the said casualty is not a casualty ‘payable or prestable’ to the superior by the defender prior to the term of entry of the pursuers under their disposition from the defender within the sense and meaning of the obligation to relieve of casualties contained in that disposition.

In addition to what I have already stated, it may be well to point out, that if the pursuers' argument is sound, the defender, and not themselves, was the party against whom the superior should have raised the statutory action. But that plea was stated by the pursuers in defence against that action, and was overruled by the Lord Ordinary (Adam) and the Second Division—see Sivright v. Straiton Estate Company, 5 R. 922, and 6 R. 1028. And I must assume that the judgment would not have been pronounced unless the Judges who decided the case had been satisfied that the casualty for payment of which they decerned against the pursuers was payable or prestable in respect of their own implied entry, and not in respect of the defender's previous implied entry. But further, if the superior had raised his action against the defender instead of the pursuers, I think the defence of the defender would have been conclusive, viz., that he was not the successor of the last vassal who would have been called as defender in a declarator of nonentry under the old law, and that therefore he was not the proper defender in the new statutory action of declarator and for payment of the casualty.

Before concluding, it is necessary to refer to the defender's averments to the effect that during the treaty for the sale, and before the disposition was executed, the question of the casualty was expressly raised between the parties, and that although the pursuers urged the defender to pay the casualty he declined to do so, and that the pursuers assented to this declinature and agreed to pay the casualties themselves. These averments are denied by the pursuers, who allege that the defender concealed from them the fact that he had not paid a casualty. If the clause in the disposition truly bears the meaning which I have now put upon it, then it is unnecessary to consider the relevancy of these averments on either side. On the other hand, if my construction is wrong, then it may become necessary to do so. But I may say that, as at present advised, I should not be inclined to admit these averments to probation. The alleged communings during the treaty of sale were prior to the date of the disposition, and if it had been intended to exclude the casualty in question from the seller's obligation to relieve the purchaser of casualties, the clause in the disposition should have been ‘specially qualified’ to that effect; and parole proof of such qualification would be clearly incompetent. On the other hand, the pursuers have not relevantly alleged on record any duty of disclosure which the defender failed to discharge. The result of the whole case is that the defender is assoilzied with expenses.”

The pursuers reclaimed. The Second Division after hearing counsel ordered the cause to be heard before Seven Judges.

Argued for the pursuers—No doubt the Lord Ordinary was perfectly correct as to the effect of the obligation and as to the superior's rights of relief under the old law, but this sale having been effected in 1876 the obligation of relief must be construed with reference to the rights and liabilities under the then existing law, the Act of 1874. The question was therefore rather a question of the meaning of the contract between the defender and the pursuers, than one of feudal tenure. The entry being after the Act of 1874, ipso jure a casualty became due and payable whenever by the operation of that Act the defender became duly entered with the superior. This was shown by the terms of the form of summons in Schedule B of that Act, which shows that the superior is since 1874 in a position to enforce immediate payment of his casualty by a direct action. This case was not therefore analogous to what would have happened under the old law, where instead of having any direct action for his casualty the superior was in this position, that he could not regard it as due and payable till the vassal demanded an entry. Under the old law the true analogy to the present case was the case of a seller who had taken on himself in his disposition an obligation to pay a composition which he had not paid. In 1799 it was decided in Gardiner v. Henderson, M. 15,037, that a seller who was unentered was bound to enter in order to give a good title, and that he could not

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oblige the purchaser to take a title which would oblige him instantly to enter as a singular successor. Applying the law of that case to the law so altered in 1874, Lord Rutherfurd Clark had held in 1876, in the case of Lawrie v. Scott (not reported), that a purchaser was entitled to call on a seller, notwithstanding that he had an implied entry by the Act of 1874, to pay the composition due on the death of the last vassal entered by him, because the lands were exposed to the claim of the superior. The only meaning of the obligation of relief must be what pursuers contend for, since there is nothing else to which it can apply.

Argued for defender—Admitting that a buyer is not bound to take delivery of a disposition till the seller could show that the fee was full, if the buyer did take such a disposition on it, he was not entitled thereafter to insist on the seller showing that the fee was full. The objection was an objection to the title offered, and that title had been accepted and infeftment taken upon it. This was a liability arising from the relation of tenure, in which the seller was no longer debtor. The casualty was not exigible till judicial demand was made, and that could be made only of the debtor, the person whose the lands were when the demand was made. The passage quoted from Erskine by the Lord Ordinary was still in point (see also Bell's Prin. 723), since till an action in the form of Schedule B of Act 1874 is brought there is no liability. The payment by the pursuers of composition to the superior was payment of their own debt, and this was a claim by them to be relieved from their own debt. The obligation of relief was certainly not intended to apply to this burden, because it was first introduced in its short form by the Act of 1847 (10 and 11 Vict. c. 48), sec. 3, when no such case as the present could exist. The case of Lawrie v. Scott, quoted on the other side, did not apply, and was not considered by the Judge who decided it to conflict with the doctrine of the decision now under review, as appeared from his note.