Scottish Court of Session Decisions

By feu-contract, dated 16th and 17th July 1880, John Welsh, S.S.C., Edinburgh, heritable proprietor of the areas of ground after referred to, disponed to John Brown and James Brown, individual partners of and trustees for the firm of J. & J. Brown, cab proprietors, Edinburgh, but under the reservations and irritancies mentioned in the deed, certain areas of building ground in and facing Easter Road, and lying in the parish of South Leith. The ground thus disponed consisted (first) of two areas marked Nos. 17 and 18 upon the feuing plan, upon which, by the terms of the feu-contract, the vassals were taken bound to erect within one year of the term of entry, and to maintain, a range of stables and coach-houses, conform to a plan to be approved of by the superior, while the feu-duty for these two areas was to be £30,16s. 8d. per annum. (Second) The other parcel of the ground disponed consisted of a feuing stance marked No. 1 on the feuing plan, and facing Easter Road, on which the vassals were taken bound, within eighteen months from the term of entry, to erect dwelling-houses of a style and elevation to be approved of by the superior, with a pend or entrance by which access might be obtained through the building on this parcel of ground to the stables and coach-houses to be erected on the first parcel. The feu-duty payable for this area was £47, 12s. 6d.

The disposition contained the following clause of irritancy:—“Declaring always, as it is hereby provided and declared, that in the event of John Brown and James Brown, trustees foresaid, and their foresaids, failing to erect within the period before specified buildings of the description foresaid, or in the event of their allowing the same to fall out of good condition and repair, or in the event of their failing in the case of fire to rebuild as aforesaid the said stables and coach-houses or tenement of dwelling-houses, or the part or parts thereof destroyed by fire, then, and in any of these events, this feu-right, and all that has followed thereon, shall, in the option of the said John Welsh, become null and void, and the pieces of ground hereby feued, and the buildings thereon, shall revert and return to the said John Welsh or his foresaids, freed from all burdens and encumbrances thereon, saving and excepting securities and burdens bona fide contracted or laid upon the said subjects by the said John Brown and James Brown, trustees foresaid, and their foresaids.”

The Browns' title was recorded on the 19th of

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July 1880, and on the same day they reconveyed the areas marked 17 and 18 on the feuing plan ( i.e., the first parcel of ground) to the Leith Property Investment Company, exfacie absolutely, but truly in security for an advance of £1000 which the company had made to them to enable them to erect the buildings stipulated in the feu-contract. The Browns erected the stables and coach-house according to the feu-contract on this parcel of ground, but failed to repay the advance as required by the rules of the company, and the parcel of ground was exposed to public roup and sale on the 11th November 1881 by the Property Investment Company, and purchased by Richard Laing, solicitor, Stirling, at the price of £1000, on behalf of James Jack, Rose Street Lane, Edinburgh. The firm of J. & J. Brown and the individual partners thereof were sequestrated in December 1880, and Mr Samuel Kelly Orr, accountant, was confirmed trustee on the sequestrated estates. No tenements of the kind provided for in the feu-contract had been built upon the area marked No. 1 on the feuing plan (the second parcel of ground), which still remained with the Browns.

The rights of property in the different areas of ground, which were originally disponed under one dispositive clause in the feu-contract between Welsh and the Browns, had thus been separated, the area for stables having passed into the hands of Mr Jack for value, that for tenements being vested in the trustee of the original disponees. In these circumstances the present action was raised by the superior Welsh against the Browns and their trustee, and also against Jack, to have it declared that owing to the failure of the original disponees to erect tenements on the second parcel (the area of ground marked No. 1 on the feuing plan), the whole subjects contained in the dispositions by him to the Browns, including the portion which had been afterwards disponed to Jack, and on which the stipulated buildings had been erected, should be forfeited to him under the clause of irritancy in the feu-charter.

The Browns' trustee did not defend the action.

Jack lodged defences, pleading—“(1) On a sound construction of the said feu-contract, the obligations applicable to the subjects second therein disponed are not made a burden upon the subjects first therein disponed, and the failure to implement said obligations does not form a ground for irritating the said feu-right quoad the subjects first therein disponed. (2) The defender as a singular successor in the said first disponed subjects, duly entered with the pursuer as superior, is not liable to implement the obligations undertaken by the said John Brown and James Brown in respect of the subjects second disponed.”

The Lord Ordinary, by interlocutor of June 2d 1882, assoilzied the defender Jack from the whole conclusions of the summons.

“ Opinion.—By the feu-contract libelled, the pursuer disponed in feu-farm to John and James Brown, and the survivor, and the heirs of the survivor, as trustees for the firm of J. & J. Brown, in the first place, two areas or pieces of ground said to be marked 17 and 18, and, in the second place, an area or piece of ground marked No. 1, on a feuing plan referred to in the contract. These two parcels of land, although conveyed by the same instrument, are feued as separate tenements; separate feu-duties are stipulated for each; and the stipulations with regard to building and access make it clear that it was within the contemplation of parties that the first feuar might dispose of the two subjects separately to different purchasers.

The vassals are taken bound to erect on the area of ground disponed in the first place a range of stables and coach-houses within a year from the term of entry, and upon the area disponed in the second place to erect a tenement of dwelling-houses within eighteen months from the same date, the buildings in each case to be capable of yielding a yearly rent equal to the double of the feu-duty applicable to the particular area on which they are to be erected; and it is specially stipulated that a pend of a certain breadth and height shall be constructed upon the second parcel, by which access may be obtained to the stables and coach-houses to be constructed on the first. These conditions are fenced with an irritant clause, by which it is provided that in the event of the defenders (the Browns), as trustees foresaid, and their foresaids, ‘failing to erect, within the period before specified, buildings of the description foresaid, or in the event of their allowing the same to fall out of good condition and repair, or of their failing in the case of fire to rebuild as aforesaid the said stables and coach-houses or tenement of dwelling-houses, or the part or parts thereof destroyed by fire, then, and in any of these events, this feu-right, and all that had followed thereon, shall, in the option of the said John Welsh, become null and void, and the pieces of ground hereby feued, and the buildings thereon, shall revert and return to the said John Welsh or his foresaids, freed from all burdens and encumbrances thereon, saving and excepting securities and burdens bona fide contracted or laid upon the subjects by the said John Brown and James Brown, trustees foresaid, and their foresaids.’

The property in the two tenements has now been separated. The areas first described have been acquired by the defender Mr Jack, as purchaser from a disponee of the original vassals, and his title has been duly completed by registration in the Register of Sasines. The second remained in the hands of the original vassals until their estates were sequestrated in December 1880, and is now vested in their trustee.

In this position of the title the superior has brought the present action for declarator of irritancy of the original feu-right, with all that has followed upon it, including the conveyance to the defender Mr Jack and his immediate author, on the averment that although the obligation to build stables and coach-houses on the ground now belonging to Mr Jack has been duly performed, the obligation to build dwelling-houses on the other piece of ground, which does not belong to him, has not been implemented in terms of the contract; and the pursuer's contention is, that notwithstanding the severance of the subjects, and the consequent creation of two distinct and separate feu-rights, the failure of the vassal in one feu to perform his obligations under the contract entitles him to forfeit the right of the other vassal, although the obligations incumbent upon him have been fully performed.

I am of opinion that the claim is not well founded. I am unable to accede to the argument of the defender's counsel, that upon a construction

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of the feu-contract the obligations to build are not well imposed upon the singular successors of the original vassals. But I think it clear that upon a severance of the two tenements the obligations applicable to each were necessarily separated also, and that the defender Jack has no more concern with the obligation to build upon any other subject than that which belongs to himself, than the obligation to pay feu-duty for any other. He has acquired a part only of the original estate. But he has effectually severed the portion so acquired from the remainder by completing a title and obtaining an entry with the superior as his vassal in that portion as a distinct and independent feu. It is true that he holds his feu subject to the conditions of the original contract. But the only conditions of the original contract which can be imported by implication into the new feu-right, or which could have been insisted on by the superior if it had been still necessary to apply for a charter of confirmation as under the old law, are those applicable to the particular portion of the estate which the new vassal has acquired.

The pursuer, however, maintains that although the obligations to build are separable upon a division of the property, the irritancy by which these obligations are fenced is indivisible. It is said that by the terms of the clause it is provided that upon the breach of any one of the recited conditions ‘this feu-right’ shall be irritated, and all that followed thereon, and that ‘this feu-right’ means the entire right created by the contract. Now, it may be that so long as the feu created by the contract remained undivided—and the rights of the superior were determined by that alone—that must have been the effect of the clause. But after the original feu has been divided, the rights of parties stand not merely upon the contract, but upon the new titles which the conditions of the original contract have allowed to be created. The question therefore comes to be, what are the conditions which the superior is entitled to import from the original contract into the new right which he creates by his charter of confirmation, or which is created for him by the confirmation implied in the registration of a conveyance? And the argument must be, that according to the true intent and meaning of the original feu, the superior had stipulated, that although upon a division each proprietor was only to be subject to the obligations properly applicable to his own estate, each was still to remain liable to an irritancy in the event of his neighbour's obligations being unfulfilled. It is to be observed that the irritancy applies not only to the case of the stipulated buildings not being erected at all, but to the case of their being allowed to fall out of condition and repair, or of their being burned down and not repaired. And the argument therefore is, that if at any time the singular successor of the original feuar in one tenement shall allow his buildings to fall into disrepair, the singular successor in the other tenement shall suffer an irritancy. It is conceded that that would be a very harsh and a very unreasonable result. But it is said that, however harsh, it is the bargain the parties made, and if the contract were so expressed no doubt the Court must give effect to it. But I cannot find that it is so expressed. It appears to me that although it was within the contemplation of the contract that the property of the two tenements might come to be severed, there is no express provision for what is to be done upon the severance in order to distribute or to enforce the obligations applicable to each. As the clause stands, the irritancy which it provides is applicable only to the right created by the original feu. So long as there is only one feu-right, obligations applicable to each tenement are incumbent upon one vassal, and the irritancy conditioned upon a breach of these obligations is necessarily applicable to that one vassal's entire right. But upon a division of the right the obligations must be separated, and the condition of irritancy consequent upon breach is necessarily distributable in the same manner as the obligations to which it relates.

I think it is not doubtful that if the question had arisen before the recent change in conveyancing, the superior could have been compelled to give a disponee of one out of the two tenements embraced in the original feu-right a charter of confirmation embracing the conditions applicable to that tenement alone, and fenced by a clause of irritancy applicable to a breach of these conditions alone. An irritancy of a feu-right consequent upon a breach of conditions applicable to a totally different estate, and which the vassal has no power to fulfil, is unprecedented; and I am clearly of opinion that there is no ground for the contention which would enable the superior to impose such irritancy in the present case.”

The pursuer reclaimed. Argued for him—Under the clause of irritancy, the whole feus being in one disposition, a failure to build on one part forfeited the whole feu to the superior. If the whole ground did not revert to the superior, as no buildings had been erected upon a large part there would be no security for the feu-duties. The defender knew the conditions upon which the ground was feued, and had thereafter nothing to complain of.

Argued for respondent (Jack)—This irritancy, even if good against the original disponees, could not be made available against a new vassal. The respondent had implemented all the obligations effeiring to his feu, and could not be made responsible for the omissions of those over whom he had no control.

Authorities— M'Culloch v. Lawrie, July 8, 1835, 13 S. 1029; Edinburgh Roperie Company v. The Magistrates of Edinburgh, 4 R. 1032, 6 R. (H. of L.) 1.