Scottish Court of Session Decisions

In this case the pursuers were the accepting and acting trustees of the late James Arnott, Esq., of Leithfield, W.S., Edinburgh, under his trust-deed and settlement dated July 7, 1866. In the course of their management of the trust-funds they, in June 1873, advanced on loan to John Renton, accountant, Glasgow, the sum of £750 sterling, which sum the latter, by bond and disposition in security dated June 13, 1873, bound himself to repay to them at the term of Martinmas 1873, with a fifth part more of liquidate penalty in case of failure, and interest at the rate of £5 per cent. per annum by equal proportions at the terms of Whitsunday and Martinmas in each year, and a fifth part more of said interest in case of failure in the punctual payment thereof. In security of the personal obligations contained in the said bond and disposition in security, John Renton disponed to the pursuers, in the first place, a plot of ground, part of the lands of Craigton, lying in the parish of Govan and county of Lanark, and containing 2 roods 14 poles and 28–100th parts of a pole or thereby imperial standard measure; and, in the second

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place, another plot of ground, also part of the said lands of Craigton.

By the said bond and disposition in security, which contained an assignation to writs and rents, it was declared that notwithstanding the therein written conveyance it should be competent to the said John Renton, his heirs, executors, and representatives, to dispone in feu-farm, to be holden of him and his foresaids, the subjects contained in the said bond and disposition in security, and that in such manner as he should deem most eligible, but so that no grassum, price, or other consideration should be taken other than an annual feu-duty or ground rent, and which for the plot of ground disponed in the first place should in no case be less than £50 sterling per annum, nor less than £56 for the plot disponed in the second place. And it was further declared that it should not be in the power of the said John Renton to make or consent to any conditions or stipulations whereby any right competent by law to him or his foresaids as superiors of any part of said subjects for security or recovery of the said feu-duties, ground rents, or casualties might be in any way prejudiced or injured. It was also further provided and declared that the superiority of the said subjects so to be feued, or any part thereof, and the feu-duties, ground rents, and casualties of superiority thereof, and every other right, title, and interest in or to the said subjects which might belong to or be reserved by the said John Renton and his foresaids as superiors, should be subject to the real security created by the said bond and disposition in security, and to the payment of the sums of money therein contained.

By feu-contract, dated June 19, 1873, John Renton feued the said plot of ground, containing 2 roods 14 poles and 28–100th parts of a pole or thereby, to David Cooke, builder in Govan, for a a feu-duty of £50 a-year, but under reservations, burdens, conditions, and limitations. which were, inter alia, as follows:—….“(2) The second party and his foresaids shall be bound to build at or before the term of Martinmas 1873, and thereafter to maintain and uphold in good repair, on the plot of ground above disponed, houses or villas not exceeding two square storeys in height, which shall yield or be capable of yielding a free yearly rent equal to at least double the amount of the feu-duty after mentioned. (3) He shall be bound to open and form streets of 45 feet wide, on which the said houses are built, and keep them in good repair in all time coming. (4) He shall be bound to form, and thereafter maintain and uphold in good order and repair, all such drains and pipes as may be necessary to conduct the drainage and sewage of the said plot of ground and houses to be built thereon to the common sewer or main drain to be formed by the said John Renton; Declaring always that such drains and pipes shall be formed and made for the drainage of the said plot of ground and houses thereon in such places and at such times as the said John Renton and his foresaids, or his or their superiors, may consider necessary; and that the same when made and renewed from time to time shall be formed and constructed of such dimensions and materials, and shall be placed in such lines and at such depth and levels below the surface of the ground, as shall be fixed and determined from time to time by the said John Renton's superiors or their successors, or a surveyor to be appointed by them; And providing, without prejudice to what is above written, that the second party and his foresaids shall be bound to pay and free and relieve the said first party of one-half of the expense of forming and maintaining in all time coming a common sewer leading through the centre of said street of 60 feet in breadth, and that in the proportion which the frontage of the said plot of ground bears to the said street of 60 feet wide, and which common sewer is to be formed by the said first party, and that at such depth and level below the surface as may be approved of by his superiors or their successors, or any surveyor appointed by them. (5) In the event of two years' feu-duty of the plot of ground, or of any part thereof, remaining at any time unpaid, the said plot of ground, with all the buildings that may have been erected thereon, shall eo ipso revert and belong to the said John Renton and his foresaids, and these presents, with all that may have followed thereon, shall eo ipso become void and null without prejudice to the claim of the said John Renton and his foresaids for payment of the byegone feu-duties, which claim shall remain entire.”

In July 1873 David Cooke conveyed to the Scottish Heritable Security Company (Limited) a portion of the said piece of ground, containing 1 rood 6 poles and 50–100th parts of a pole, under the reservations, burdens, and others contained, inter alia, in the feu-contract between John Renton and David Cooke, and to be holden a se vel de se for payment to the superiors thereof of £25 a-year, being the proportion bearing to be thereby allocated by David Cooke on the subjects so disponed of the cumulo feu-duty of £50, and which allocation was confirmed by memorandum by John Renton as superior of the property.

By disposition dated December 3, 1875, the Heritable Security Company conveyed this latter piece of ground to Thomas Forbes, builder, Govan, the defender, who thereby became heritable proprietor of the same. Renton and Cooke thereafter became insolvent. The pursuers presented this petition in the Sheriff Court of Lanarkshire to have the defender ordained to pay them the sum of £474, 9s. 9d. sterling, with interest at 5 per cent. from date of citation till payment. This sum, they averred, formed the payments due to them since Martinmas 1873 in respect of the feu-duty of £50 sterling before mentioned contained in the feu-contract between Mr Renton and Mr Cooke, and which had not yet been paid. They further averred that the sum of £750 contained in the bond and disposition in security from Mr Renton was also still unpaid.

They pleaded—“(1) The pursuers being heritably vested in the superiority of the subjects owned by defender, and the feu-duty being unpaid as aforesaid, decree should be pronounced as craved. (2) The foresaid arrears of feu-duty, interest, and liquidate penalties being due by the defender, and the pursuers being entitled to payment thereof under and in virtue of the foresaid bond and disposition in security, decree should be pronounced as craved.”

The defender, on the other hand, averred that Mr Renton, as superior, had failed to implement the obligations he undertook in the feu-contract

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of June 19, 1873, to make certain streets, houses, and sewers therein mentioned, although he had been repeatedly required to do so. That in consequence the defender and his authors had not been able to enjoy the proper use of the said ground so feued to him. He further averred that the feu-contract granted by Mr Renton to David Cooke was granted in terms of and within the powers contained in the pursuer's bond and disposition in security, and that they had never in any way repudiated the conditions therein specified. He was perfectly willing to pay any feu-duty due by him as soon as the pursuers should adopt and fulfil the obligations and conditions undertaken by their author Mr Renton.

He pleaded—“(4) As the pursuers had no higher claim than their author Mr Renton, and as, while claiming under the feu-contract, they refused to adopt and implement the obligations incumbent on the superior, the defender ought to be assoilzied, with expenses. (5) The obligations incumbent upon the superior, and which he was bound to fulfil as a condition of his getting the feu-duty, being still unimplemented, the defender was not bound to pay any feu-duty or any portion of the sum sued for. (6) In any case, the pursuers were bound to recognise the allocation of the said John Renton, whereby the feu-duty of the defender's plot was only £25 per annum. (8) In any case, the pursuer was not entitled to claim any arrears prior to the date of entering into possession in ordinary form, and he had not as yet taken any such step in regard to the subjects in question. (9) The defender having suffered loss and damage through the failure of the pursuers and their author Mr Renton to implement the obligations incumbent on them, and to an extent greatly in excess of any feu-duty exigible from him, he was entitled to absolvitor, with expenses.”

The following joint minute of admissions was put into process by the parties:—“(1) That the feu-duty sued for had not been paid since the term of Whitsunday 1873. (2) That the principal sum of £750 contained in pursuers' bond and disposition in security is unpaid, and no interest has been paid thereon since the term of Whitsunday 1874. (3) That the feu-duty to the superiors of John Renton, who is superior of the defender, £50 per annum, had not been paid since Whitsunday 1875.”

The Sheriff-Substitute ( Guthrie) found “that the defender was heritable proprietor of 1 rood 6 poles and 50–100th parts of a pole, part of the lands of Craigton, lying in the parish of Govan and county of Lanark, conform to disposition by the Scottish Heritable Security Company (Limited), dated 3d, and recorded December 8, 1875, said ground being one-half of the feu marked No. 1 on the plan of feus at Craigton: Found that the immediate superior of said subjects was John Renton, who by feu-contract dated 19th, and recorded July 21, 1873, feued the whole of the said feu No. 1 for a feu-duty of £50 a-year to David Cooke, by whom the said one-half thereof was conveyed to the said Scottish Heritable Security Company (Limited), under the reservations, burdens, and others contained, inter alia, in the said feu-contract between John Renton and David Cooke, and to be holden a se vel de se for payment to the superiors thereof of £25 a-year, being the proportion bearing to be thereby allocated by the said David Cooke on the subjects so disponed of the cumulo feu-duty of £50: Found that by bond and disposition in security dated 13th, and recorded June 17, 1873, the said John Renton, in security of a loan of £750, had disponed to the pursuers the said feu marked No. 1, along with a similar adjacent piece of ground, which is No. 2 on said plan: Found that the memorandum of allocation was ineffectual to prejudice the rights of the pursuers as creditors under the said bond and disposition in security in their favour, and repelled the defender's sixth plea: Found that by the feu-contract between Renton and the defender's author, the former became bound to make certain streets and sewers therein specified, and that he had failed to do so, to the great loss and injury of the defender: Found that Mr Renton as superior was entitled, by the terms of the conveyance in security in favour of the pursuers, to feu the subjects thereby conveyed in such manner as he might deem most eligible, subject to certain conditions, none of which conditions were violated or infringed by his said obligation to make streets and sewers: Found therefore that the pursuers, as in his right, were not entitled to insist for payment of the feu-duties due by the defender from the date of his purchase until they or their author should have implemented said obligation: Sustained the defender's fifth plea, and assoilzied them from the prayer of the petition, and decerned.”

He added this note:—“A number of questions have been raised in the discussion of this case, all of which it is not necessary to decide.

“1. The pursuers' title to sue is not impugned on the record, and under the case of Home v. Smith, 1794, Mor. 15,077, appears to be clear-Bell's Conveyancing, 747–8 and 1150; Duff, Feu-Con., sec. 204, 275. In this case the heritable creditor is very distinctly invested with the superior's rights for the recovery of the feu-duty.

2. Mr Renton's memorandum of allocation cannot have any effect against his creditors. There is not much law either in the text-books or in decisions with regard to the superior's power and obligation to allocate feu-duties. It seems, however, that both by common law and statute an allocation of feu-duties cannot affect the rights of heritable creditors who are not parties to it—See 37 and 38 Vict., c. 94, sec. 8. And in the present case, the prior recorded disposition to the pursuers distinctly excludes by its terms, as I read them, Mr Renton's power to allocate so as to prejudice them; for in giving him the power to feu referred to in the interlocutor it provides that the feu-duty of the plot of ground in question, No. 1, shall in no case be less than £50 a-year, and that it shall not be ‘competent for Mr Renton to make or consent to any conditions or stipulations whereby any right competent by law to him, as superior of any part of said subjects, for security or recovery of the feu-duty may be in any way prejudiced or injured.’ Now, one of the superior's rights for security and recovery of his feu-duties is, that it affects every part of the ground feued, and that the vassal, in subdividing the feu, cannot, without his consent, relieve any part of the ground from that burden. What Mr Renton does by his memorandum of allocation subsequent to the pursuers' recorded

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right is to relieve part of the ground from the burden of the feu-duty, the very thing that is prohibited in the clause quoted. Clearly, therefore, in a question with the pursuers, that allocation is ineffectual.

3. The superior's right to sue a personal action for the whole of his feu-duty against a sub-vassal or intromitter with the fruits is equally clear, and is alike unaffected by the subdivision of the feu—Bell's Prin., 700, and cases cited there. The pursuers, however, cannot in any view be allowed to recover in such an action the feu-duties due before the defender's possession of the ground— i.e., before December 3, 1875. This seems to have been law for more than two centuries— Rollo v. Murray, 1629, Mor. 4185; Cockburn v. Trotters, 1639, Mor. 4187; Hamilton v. Burleigh, 1712, Mor. 4189; Biggar v. Scott, 1738, Mor. 4191; Ersk. Inst., ii., 5, 2, and notes. This, however, appears to be the only recognised exception to the personal liability of the ‘intermeddler,’ as Erskine calls him; and it does not seem ever to have been suggested that this, any more than the superior's other remedies, is affected by subdivision of the feu not recognised by him.

4. In the view which I take of the case, it is unnecessary to consider whether the fact that the feu-duty due by the pursuers' author to the over-superiors is unpaid affords a good defence, more especially as that plea has not been fully argued, and it might probably be obviated by arrangement.

5. The proof clearly shows that the defender has been prevented from obtaining anything like full enjoyment of his feu-right by the superior's entire failure to provide him with roads and sewers in implement of his obligation in the feu-contract. It was the superior, not the feuar, who was to put these feus in communication with the outer world; and in consequence of his unexplained neglect to do so, the defender has undoubtedly failed to derive from them the benefit to which he was entitled, and which was naturally in the contemplation of parties when the feu-right was constituted. The pursuers stand upon the right of the superior to his feu-duty; but they must take that as it stands written in the feu-contract, so far as that feu-contract is within the powers belonging to the superior at common law, and under the rights reserved to him in their own prior heritable security. In obliging himself to make these roads and sewers, it is not and cannot be contended that Mr Renton undertook any unusual or extraordinary burden in the circumstances, or one that the pursuers, who took their security over ground intended for feuing, did not quite intend and foresee. Upon the principle, then, of the cases referred to in Bell's Prin., 702, and Shaw's Bell's Comm., 735, the defender is entitled to retain his feu-duties until he receives implement of the counter prestations stipulated in the feu-contract.”

The pursuers appealed, and argued—They were quite entitled to proceed against the defender for vindication of the feu-duties due by him to the superiority. The obligation put forward by him as incumbent on them to build sewers, &c., was no direct obligation on them at all. It was merely an obligation on Cooke with reference to his over-superior Renton, and further, was posterior to the bond and disposition in security, which was the measure of the pursuers' title. The defender therefore had no right of retention against them— Drybrough v. Drybrough, May 21, 1874, 1 R. 909. The obligation was not of such a kind as could be put against a liquidate feu-duty. The cases cited by defender were cases of landlord and tenant, and had no application here.

The defender replied—The vassal was entitled to retain the feu-duties in respect of the failure of his superior to perform the obligations incumbent on him with reference to the building of houses, streets, and sewers— Guthrie v. Shearer, November 13, 1873, 1 R. 181; Davie v. Stark, July, 18, 1876, 3 R. 1114; Ainslie v. Magistrates of Edinburgh, November 19, 1839, 2 D. 64, also reported February 9, 1842, 4 D. 639; Kilmarnock Gas Light Co. v. Smith, November 9, 1872, 11 Macph. 58. The pursuers had abstained from claiming their feu-duties for eight years.

At advising—