Scottish Court of Session Decisions

On 17th December 1873 the Magistrates of Glasgow exposed to public roup and feu two plots of ground. John Athya, merchant in Glasgow, became the purchaser, and by minute annexed to the articles of roup and feu enacted and bound and obliged himself, and his heirs and successors, to implement the whole of the conditions therein contained. It was provided, inter alia, by the said articles that the feuar or feuars should be obliged within two years after the roup to erect and maintain on these plots of ground dwelling-houses of a certain description and value.

On 10th and 11th May 1876 two feu-contracts were entered into between the Magistrates of Glasgow and John Athya, by which the Magistrates disponed in feu to John Athya, and his heirs and successors whomsoever, the above-mentioned two plots of ground, with entry as at 17th December 1873, notwithstanding the date of the feu-contracts, and it was expressly provided and declared that they were granted with and under the conditions, provisions, limitations, declarations, irritancies, reservations, and others therein set forth, and, inter alia, the following: —“( Primo) That the said John Athya should be bound and obliged, as he thereby bound and obliged himself and his foresaids, within two years after the said 17th day of December 1873, to erect on the said plot or area of ground, and thereafter in all time coming to maintain thereon, dwelling-houses” of a style and elevation stipulated. There was also in the feu-contracts a clause of irritancy in the event of the feuar or his successors contravening any of the conditions and provisions in the feu-contracts.

In July 1877 John Athya conveyed the subjects to John Macqueen Barr and James Carstairs, accountants, Glasgow, and the survivor of them, in trust for themselves, who were infeft on 1st November 1877, and on 19th November disponed to Robert Hunter Hay and William Home Hay and John James Hay, partners of the firm of Robert Hunter Hay & Brothers, millers, Glasgow, who recorded their disposition on 31st August 1878. No buildings were then or at the date of this action erected on the ground.

This was an action raised on 13th March 1879 by the Magistrates of Glasgow against R. H. Hay, W. H. Hay, and J. J. Hay, partners of and trustees for their firm of Robert Hunter Hay & Brothers, and also against John Athya, and John Macqueen Barr and James Carstairs, as individuals and as trustees for the firm of Barr & Carstairs, for their interest, to have it found and declared that the defenders R. H. Hay, W. H. Hay, and J. J. Hay, and their predecessors and authors, had failed to erect “within two years after the 17th of December 1873” upon these two plots of ground dwelling-houses according to the stipulations in the feu-contracts, and had therefore forfeited their right in the subjects. The pursuers also concluded for decree of removing.

The defenders averred that it was with the pursuers' full consent and acquiescence that no buildings had been erected. They pleaded, inter alia, that the condition that buildings should be erected within two years from 17th December 1873 being impossible, ought to be held pro non scripto, and that on a sound construction of the feu-contracts they were only bound to erect buildings on the ground within two years, or within a reasonable period, after being required to do so.

On 26th June 1879 the Lord Ordinary ( Adam) pronounced this interlocutor:—“The Lord Ordinary having heard counsel for the parties, Finds that the defenders are bound, within two years from the 13th March 1879, being the date of the summons in this action, to erect on each of the two plots or areas of ground, respectively contained in the two feu-contracts of date 10th and 11th May 1876, dwelling-houses of the style and elevations and of the values specified in the said feu-contracts respectively: Quoad ultra continues the cause, reserving all questions of expenses.

“ Note.—The feu-contracts founded on contain an obligation on the vassals to erect dwelling-houses of a certain description and value therein specified within two years after 17th December 1873, that having been the date of the defenders' predecessor's entry to the subjects.

The feu-contracts themselves are, however, dated on the 10th and 11th May 1876, before which time it will be observed the dwelling-houses ought to have been erected.

The Lord Ordinary thinks that by granting the feu-contracts the pursuers must be taken to have condoned any previous failure on the part of the vassals to implement the obligation in question. The Lord Ordinary accordingly thinks that after having granted these feu-contracts the pursuers are not entitled to decree of declarator that the vassals had incurred an irritancy in respect of their failure to build within two years after the 17th December 1873.

The Lord Ordinary, on the other hand, does not think the obligation is to be held pro non scripto because it is impossible to implement it in its exact terms. He thinks that the pursuers are entitled to have the obligation fulfilled in substance, although it may not be now possible to enforce it in its exact terms.

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He thinks that the defenders are bound to complete the buildings stipulated for within two years after being required to do so by the pursuers. He thinks it reasonable that the raising of this action should be taken as a requisition to that effect, and he has accordingly pronounced the preceding interlocutor.”

The defenders having failed to erect the buildings, the Lord Ordinary on 28th October 1882 pronounced this interlocutor:—“Finds, decerns, and declares, and decerns in terms of the whole conclusions of the summons, with this variation, that the words ‘the seventeenth day of December Eighteen hundred and seventy-three,’ in the first conclusion for declarator, occurring on page second of the summons, shall be held as deleted, and the words ‘the thirteenth day of March Eighteen hundred and seventy-nine shall be held as inserted in their place: Finds the defenders Robert Hunter Hay and William Home Hay and John James Hay liable to the pursuers in expenses; and remits,” &c.

The defenders reclaimed, and argued—The pursuers were not entitled to enforce the irritancy in the circumstances of the case. The condition ought to be held pro non scripto. At most the pursuers could only have a personal action, and not the extreme remedy they claimed. In no view could the condition be applied to another date than that mentioned in its own terms—Ersk. Princ. iii. 3, 34; Bell's Lect. (2d ed.), 618; Napier v. Speir's Trustees, May 31, 1831,9 S. 655; Tailors of Aberdeen v. Coutts, 1 Rob. App. 296; Earl of Mar v. Ramsay, November 28, 1838, 1 D. 116; Croall v. Magistrates of Edinburgh, December 20,1870, 9 Macph. 323; Pollock on Contracts.

During the debate in the Inner House they added this plea-in-law to their defences—“(6) The irritancy contained in the two feu-contracts cannot be extended beyond its terms, and does not apply to any condition, even if such exists, that buildings are to be erected within two years of the date of the summons.”

The pursuers replied—The superiors had not lost their right to enforce this condition merely because they had allowed time to the vassals— Napier v. Spier's Trustees, supra cit.

On the suggestion of the Court, the pursuers amended the summons by adding the words given within brackets, concluding that it should be found and declared that the defenders “have failed to erect, within two years after the 17th December 1873 [or at all events within two years from the date of the feu-contracts after mentioned], upon each of the two plots or areas of grounds after mentioned, dwelling-houses,” &c.

At advising—