Scottish Court of Session Decisions

By disposition dated 24th January 1673, and recorded 8th April 1679, Sir George Mackenzie of Tarbet, afterwards first Earl of Cromartie, in consideration of having received from Andrew Ross of Shandwick the sum of 4708 merks, 6s. 8d. Scots money as the real price and full value of the lands and teinds to be disponed, sold, annailzied and disponed to and in favour of the said Andrew Ross and Lillias Dallas, his spouse, and longest liver of them two in liferent, and William Ross, their son, his heirs-male and assignees whatsoever, heritably and irredeemably, in fee, the said Sir George's “three-quarters of the touen and davoch lands of Drumgillie,” with the pertinents thereof, “together with the teinds sheaves and parsonage teynds of the said three-quarter lands, crofts and pertinents thereof included, with the stock, and not to be separate therefrom in all time coming.” The clause of tenure was as follows—“To be holden of the said Sir George Mackenzie, his heirs-male and successors, in feue and heritage for ever, for yearlie payment to them of the sume of three pounds Scots money, at two tearms in the year, Whitsunday and Martinmass, be equal halfs nomine feudi firme; together with three days' service of the tennants and possessors of the saids lands with their horses and oxen ilk year in manner following, viz., one for plowing, another for casting and leading of peats, and the third for casting and leading of divets after the accustomed manner, and they desired thereto, and als. relieving the said Sir George Mackenzie and his forsds. at the hands of our Sovereign Lord the King's most excellent Majesty, and his heirs and successors, of the number and quantity of threescore twelve bolls victuall, half bear half oatmeal, twelve shillings money silver mail, and six henns yearly, and that as the proportionable part effeirand to the ads. three-quarter lands of the whole feu-duty payable by the said Sir George Mackenzie to his Majestie in name of fue-duty for the haill davoch and lands of Drumgillie, beginand with the duty payable for the year and crop Jajvie threescore twelve years, at the tearms used and wont, and sua furth yearlie in all time comeing.” The disponer Sir George Mackenzie thereafter bound himself “to exoner, releive, harmless and skaithless keep, the said Andrew Ross, his sd. spouse, their said son, and

Page: 327↓

his forsds., of feu-duties, teynds, tack-dutys, minister's stipends, cess, taxations, annuities, excise money, and other private and publick imposts of whatsomever nature, due and payable furth of the lands, teynds, and others hereby disponed, wt. the pertinents, at the hands of those having, claiming, or pretending to have interest therto in any sort, and that of all moneys, cropts, years, and tearms preceeding the feast and tearm of Whitsunday last bypast Jajvie threescore twelve years and cropt revive after assigned, and yearly and tearmly in all time comeing of all teynd-duty, minister's stipends, and annuity of teynds allenarly, and to make the acquitances and discharges therof furthcomeing to them at all occasions necessar when necessarlie they shall have to do therwith, wherin if the sd. Sir George Mackenzie and his forsds. faillzie, and that the said Andrew Ross and his forsds be distressed for and forced to pay any of the sds. dutys throw the want of the saids discharges, then and in that case he binds and obliges him to reimburse the said Andrew, his said spouse, their sd. son, and his forsds. therin, cum omni damna.” The immediately, ensuing clause was as follows—“And in effect that the teynd-sheaves and the parsonage teynds of the sds. three-quarters land, with the pertinents, were disponed alswell as the stock to the sd. Andrew and his forsds., to make up to them the rent of fourty-two bolls victuall, and that by and attour the forsd. yearly feu-duty sua payable to his Majesty and the sd. Sir George Mackenzie in manner above expresst; and that the sume of £1200 Scots money was payd be the said Andrew to the said Sir George Mackenzie alswel for ilk chalder teynd as stock: Therfor the said Sir George Mackenzie binds and obliges him and his forsds. to the said Andrew Ross, his spouse, and their sd. son, and his forsds., that in case the teynd-sheaves of the sd. lands, with the crofts and pertinents yrof., or any part or portion of the sds. teynds, be evicted fra them be whatsoever person or persons, or yt. the semen lands and teynd be burdened and affected wt. any minister stipend in time comeing, whether present or supervenient, then and in that case, and immediately after the sd. eviction or burdening of the said lands and teynd as sd. is, to content and pay to the said Andrew Rosis and his forsds. in liferent and fee revive the sum of £1200 money forsd. for ilk chalder that shall be sua evicted, whither of stock or teind, wt. the @rent of the sds. sumes yearly and tearmly dureing the not-payment therof after the said eviction: And it is hereby declared and speciallie provided, that in case any action shall happen to be commenced and persued against the sd. Andrew Ross and his forsds. for evicting of the saids lands and teynds or any part therof frae them, or burdening of the sds. teynds as said is at any time hereafter, that then and in yt. case they make due and lawfull intimation of any such actions when moved or persued befor litiscontestation be made in the cause to the sd. Sir George Mackenzie and his forsaids personallie, or at the mannor place of Milntoun, in presence of a nottar and witnesses as effeirs, to the effect he and his foresaids may compeer and defend them in liferent and fee revive against all such persuits.”

In the first known process of locality after the date of the said disposition, viz., that which terminated in 1720, the Court found that by the terms of the said disposition the Earl of Cromartie was bound to relieve the said three-quarters lands of Drumgillie of any part of the minister's stipend allocated thereon, and ordained the proportion of stipend allocated thereon to be localled on his lands within the parish. In the next locality, which terminated in 1809, the Lord Ordinary reserved to Mrs Jane Ross of Shandwick, then proprietrix of Drumgillie, and her husband, their claim of relief against the Earl of Cromartie for any part of the augmentation allocated on the said lands. In 1816 the lands of Drumgillie were valued, and the stock and teind of the said three-quarters were valued at £196, 3s., the teind being £39, 4s. 71d. In the next locality, which terminated in 1855, a large augmentation was laid on the said lands, under reservation of relief against Mr Hay Mackenzie of Cromartie. In the last rectified locality of the said parish, modified 11th December 1876, the sum allocated on the said three-quarter lands was £39, 4s. 72d.

The present action was raised by the trustees of the late Captain Reid and the trustees of the late Mr John Ross Duncan, as heritable proprietors pro indiviso of the estate of Shandwick, of which the said lands of Drumgillie formed part, against the Duchess of Sutherland as superior of said lands, for the repayment of the amount of stipend paid by the pursuers for the said three-quarter lands for crops and years 1876, 1877, 1878, and 1879.

The pursuers averred—“Since the granting of the said disposition by the said George Mackenzie, Earl of Cromartie, the said George Mackenzie and his successors, including the defender the Duchess of Sutherland, have all along till 1877 (for crop and year 1876) admitted their obligation to relieve the proprietors of the said three-quarter lands of Drumgillie, now called Shandwick, from the payment of stipend for or in respect of the said lands, and have either themselves made payment of the stipend to the minister of the parish, or repaid the amount thereof to the proprietors of the said lands; but since 1877 the defender has failed to make payment of the stipend due in respect of the said lauds to the minister of the parish, and the same, as ascertained and settled by the said rectified scheme of locality, has been paid to the minister by the pursuers. The several sums paid by the pursuers to the minister of the parish as stipend for the said lands are the sums specified in the conclusions of the summons, and the same are now due and resting-owing by the defenders to the pursuers; but the defenders have refused, or at least delay, to make payment thereof, whereby the present action has been rendered necessary.”

The defender denied that she represented the disponer Sir George Mackenzie, but explained that for the purposes of the present action she did not intend to dispute her obligation to carry out, or the pursuers' right to enforce, the terms of the said disposition. She admitted that from 1809 onwards she and her predecessors had relieved the proprietors of the said three-quarter lands from payment of stipend. In 1877, for crop and year 1876, however, such payment was refused, and the defender stated her desire and intention to redeem the obligation of relief under the clause of said disposition having regard thereto, and tendered the pursuers £187, 10s. in

Page: 328↓

full of all liability under said obligation for the future. That sum was calculated to be the equivalent of the annual value of victual, half bear half oatmeal, on the average fiars prices for years 1871–77—represented by the said sum of £39, 4s. 7 1 2d.—calculated said redemption at the rate of £1200 Scots per chalder. This offer the pursuers refused.

The defender pleaded—“(1) The defender having offered and being willing to redeem the obligation of relief founded on in the manner prescribed by the said disposition, is entitled to absolvitor with expenses.”

The Lord Ordinary (Curriehill) decerned against the defender in terms of the conclusions of the summons.

His Lordship added this note—“The object of this action is to enforce against the defender, the Countess of Cromartie and Duchess of Sutherland, an obligation undertaken by her ancestor Sir George Mackenzie, in 1673, to relieve the pursuers' predecessor Andrew Ross of Shandwick, and his successors, of all stipend and burdens on teinds affecting, or that might be made to affect, the lands of Drumgillie, then conveyed by Sir George to the said Andrew Ross. The obligations of relief are set forth at length in the record, and need not be here repeated. The defender admits the validity and subsistence of the obligation, but maintains that by its terms she is entitled to redeem the obligation by paying the pursuers at the rate of £1200 Scots for each chalder evicted or burdened with stipend. The defender maintains that the option of redemption is vested in her. The pursuers maintain that the obligation of relief is twofold—(1) A general obligation to relieve the purchaser of all stipend; (2) an obligation, in the event of and immediately after eviction of teinds or land or imposition of stipend, to repay a corresponding portion of the price at the rate specified in the clause of relief. It appears to me that according to the sound construction of the deed the option lay with the purchaser and his successors, and not with the seller. The deed has been so interpreted by all concerned ever since the teinds began to be burdened with augmentation in 1720, although during the greater part of that time it would have been greatly to the advantage of the defender and her predecessors to have asserted and vindicated their alleged option. On the whole, I have little difficulty in adopting the pursuers' construction of the deed.”

The defender reclaimed, and argued—On a sound construction of the disposition she was entitled, in terms of the special clause following the general one of warrandice, to redeem the annual demand for relief by a slump payment, calculated in the manner therein proposed, and cancelling, to the extent of the valued teind, the original bargain. The special clause was to be read with the general one as qualifying it, and limiting the possible liability of the disponer and his successors. The bargain was a carefully framed one, and was probably considered likely to be fair for both parties thereafter, as it was at the time, though the change in value of grain had rendered it de facto otherwise. It amounted to a contract of insurance or taxation of the general warrandice, the special clause limiting the disponee's possible indemnification in case of eviction. The option of redemption was presumably with the debtor in this obligation, the disponer, and the fact of his not having exercised it in time past could not alter the question of construction of the clause.

Replied for the pursuers—The clause in question imported only an obligation, and no right or privilege to the disponer. The option of receiving repayment in the manner specified lay with the purchaser and his successors. If the seller ever had an option, he had lost it by non-use. The deed should be construed in the light of the subsequent actings of parties.