Scottish Court of Session Decisions

At advising—

Lord President—In this case the original feu-contract was granted by Frank Stewart Sandeman to William Stiven and Henry Gibson, and was dated February 1876. The subject conveyed was of considerable extent and the feu-duty £480 a-year. In the same month a sub-feu was granted by Stiven and Gibson to Alexander M'Culloch. There was no prohibition against subinfeudation, and indeed there could not have been, because by the Act of 1876 all such prohibitions are declared illegal. M'Culloch is the author of the defender. The sub-feu-duty is only £22, 12s. 4d., which shows that the portion given out to M'Culloch is very small as compared with the whole. Stiven and Gibson have both become bankrupt, and according to the fifth article of the condescendence are considerably in arrear of their duty—£1440 in all, and that is the sum concluded for in this summons. So that the result of this action would be to compel a sub-vassal to pay £1440 who undertook to pay only £22, 12s. 4d. In these circumstances has arisen the question, as stated by the Lord Ordinary.:—“Whether a superior has a direct petitory action against a sub-vassal for the whole feu-duty payable for the lot of ground of which the property of the sub-vassal forms a part?” Now, there is no doubt that the creator of the feu-right remains dominus of the estate, and therefore being creditor in an obligation for payment of an annual sum which is debitum fundi, he is entitled to enforce his right by real diligence, and, in particular, he is entitled to poind any portion of the ground, in whosoever's hands he may find it. All that is perfectly clear in so far as real diligence is concerned. But this is a question of personal liability—Is the sub-vassal liable to pay, it may be, his whole means and substance to satisfy the over-superior? Now, in the case of Hyslop I concurred with several of the consulted Judges in giving an opinion that the liability could not be maintained to that extent, and I repeated the same statement of the law in the Marquis of Tweeddale. I have, however, reconsidered the whole matter, but I confess the result of my study has been to confirm my confidence in the views I formerly maintained. If the liability claimed here existed, I think we would find some distinct statement to that effect in our institutional writers. In the writings neither of Craig nor of Ross is there any mention of this right. Stair and Erskine are silent on the subject, and Bankton expresses an opinion on a somewhat analogous case from which I infer that he would not have admitted the claim. In vol. i., p. 621, he says—“When the fee devolves upon heirs-portioners … and the duty consists in money, or other fungible, which is divisible, each heir is only liable for his own proportion, but till the fee is divided the superior may poind any part of the ground or distrain the goods thereon for the whole feu-duty.” Now, in that case his opinion is, that each of the heirs-portioners is personally liable only for a share. It is quite true that in some modern books of practice the rule has been stated as the pursuer contends, and I do not undervalue the authority either of Menzies or of Duff. But I do not think that they are borne out by the cases to which they refer. The first is that of Moncrieff v. Balnagown. Now, it is at once apparent that the report of that case is not distinct or satisfactory. That there is a debitum fundi is indisputable, and I am led to consider whether, after all, the case may not have been a poinding of the ground. But, at all events, a case of that time reported so imperfectly can hardly make law where there are other considerations so strong against it. The other case to which the conveyancing writers refer is that of Wemyss, and most certainly that does not decide the point. It is certainly not laid down there as a general rule that every sub-vassal, however small his portion, is liable for the whole duty in the original contract of feu. The point that arose there regarded the condition under which the superior was bound to receive purchasers of portions of the original feu. But that does not decide this question. I therefore retain the opinion I have more than once expressed.

Lord Deas—Your Lordship has correctly stated the nature of this case, and I am of opinion that the superior might perhaps attain the same end by a poinding of the ground, but he has no personal action against sub-vassals except for the feu-duty due by themselves. For the reasons your Lordship has stated I am clearly of that opinion.

Lord Mure—I concur. No doubt the whole feu-duty might be secured from the portion of the ground belonging to the defender by poinding of the ground or adjudication. But on the question here I agree that there is no direct authority for the pursuer's claim in any of the institutional writers, and my opinion rather is, that from their silence on the point the opposite may be implied.

Lord Shand—As I read the opinion I delivered in the Marquis of Tweeddale, I think I reserved my opinion on the question raised in this case. Having considered it now, I concur in the opinion of your Lordship. If the question here were one of real diligence, in which the superior was seeking to make his feu-duty good against land held by sub-vassals, there can be no doubt of his right. The principle is quite obvious that the superior has made his feu-duty a debitum fundi against every portion of the ground he has feued. The superior has stipulated as a condition of parting with his land that it shall be liable for his feu-duty. But this is a question of a totally different kind. It is clear that no obligation to the over-superior has been undertaken by the defenders themselves—that is limited to the duty payable to their own superior. Then if there be no personal obligation undertaken by the sub-vassal under his contract, how is it said that the obligation arises? It can only be from the relation existing between superior and vassal. But I confess I see nothing in that relation to create a personal action against a sub-vassal. It may be reasonable that the superior should get any benefit of any personal obligation which the sub-vassal may have undertaken to his superior. I do not think there is any authority that goes further than that, and I am not disposed to stretch the law upon that. I think it goes far enough already. Wemyss is plainly distinguishable from the present case. In it sub-feuing was positively prohibited—purchasers had to become vassals of the original superior, and beyond that it was provided that the original vassals had to bind over purchasers from them in the same stipulations for which they were liable. That does not appear to me to touch in the least on a case like the present. Then there is the case of 1630—Moncrieff—which I concur with your Lordship in thinking most unsatisfactorily reported. I have only further to say, as regards that case, that everything would turn upon the particular clauses of the deed before the Court. Moreover, even if it is correctly reported, I cannot follow the reasoning of it, viz., that because there is a debitum fundi therefore there is a personal action.