Scottish Court of Session Decisions

The Police Commissioners of Dundee, as heritable proprietors of certain lands in High Street, Dundee, exposed the same to sale in feu-farm by public roup on 14th August 1878, in terms of articles and conditions of roup. A portion of the lands was purchased at the sale on behalf of William Straton, restaurateur, Dundee, at a yearly feu-duty of £250.

The feu-contract following on the sale, inter alia, declared a feu-duty of £250, to begin from Martinmas 1879, to be a real and preferable burden, and that Straton was to be bound within two years from Martinmas 1878 to erect and maintain stone buildings of a certain class, under a penalty (declared to be pactional and not penal) of an additional feu-duty, payable along with the ordinary feu-duty, so long as the failure should last; and Straton further undertook obligations as to paving part of the street, “and further bound and obliged himself, his heirs, executors, and successors whomsoever, conjunctly and severally, to content and pay to the said parties of the first part … the said yearly feu-duty of £250, … and all the other obligations and payments specified in the feu-contract.” The two years within which Starton was taken bound to build expired at Martinmas 1880, and no buildings were erected.

Straton conveyed the subjects in March 1880 to David Fleming, and Fleming conveyed them in December 1881 to Robert Yeaman of the Lee, Corstorphine, near Edinburgh. The deed was recorded on 10th February 1882, and the subjects were conveyed by it to Yeaman under all the burdens and provisions specified in the contract of feu.

The present action was raised by the Commissioners of Police of Dundee against Straton and Yeaman, and concluded that they should be decerned and ordained, conjunctly and severally, or at any rate severally, to implement and fulfil the various obligations of the feu-contract (1) by erecting and maintaining buildings; (2) by flagging the footpaths, or alternatively with these conclusions to pay the pursuers a sum of £3000; (3) to make payment to them of (1st) £125 as half-year's feu-duty due at 11th November 1882, and (2nd) £250 as half-year's feu-duty due at May 1883 and half-year's additional feu-duty as penalty due in respect of failure to build.

The defender Straton admitted the purchase of the lands on his behalf at the roup in August 1878, and also admitted that the two years allowed to him to build expired in 1880, but alleged that prior to that date he was discharged, by a sale of the lands, of all personal responsibility for performance of the obligations of the feu. He further alleged that by the terms of the Conveyancing Act of 1874, as notice of the change of ownership of the said feu was given to the pursuers in May 1880, he had long ceased to have any interest in the feu. Sec. 4, sub-sec. 2, of that Act provides—“Every proprietor who is at the commencement of this Act, or thereafter shall be, duly infeft in the lands, shall be deemed and held to be, as at the date of the registration of such infeftment in the appropriate Register of Sasines, duly entered with the nearest superior whose estate of superiority in such lands would according to the law existing prior to the commencement of this Act have been not defeasible at the will of the proprietor so infeft, to the same effect as if such superior had granted a writ of confirmation according to the existing law and practice.” It is also provided by the sub-section—“That notwithstanding such implied entry, the proprietor last entered in the lands, and his heirs and representatives, shall continue personally liable to the superior for payment of the whole feu-duties affecting the said lands, and for performance of the whole obligations of the feu until notice of the change of ownership of the feu shall have been given to the superior; but without prejudice to the superior having all his remedies against the entered proprietor under the entry implied by this Act, and without prejudice also to the right of the proprietor last entered in the lands, and his foresaids, to recover from the entered proprietor of the lands all feu-duties which such proprietor last entered in the lands, or his foresaids, may have had to pay in consequence of any failure or omission to give such notice.”

He also averred that he had ceased to have any interest in the feu before a feu-duty became exigible under the feu-contract.

The defender Yeaman admitted that the two years allowed by the feu-contract for building expired in 1880, but denied that he was under any obligation to implement its provisions. He alleged that he did not acquire the lands till December 1881, at which date the time for erecting the buildings had long passed. He further alleged that no demand had ever been made upon him by the pursuers to proceed with the buildings, but rather that they acquiesced tacitly in no steps being taken in that direction. He averred that no penal feu-duty was exigible in the circumstances, but admitted liability for the ordinary feu-duty.

The pursuers pleaded that the defenders were liable conjunctly and severally to fulfil the whole obligations imposed upon the second party under the feu-contract.

The defender (Straton) pleaded—“(1) By the entry with the superior, implied by the recording of the foresaid disposition of the said subjects by the present defender in favour of the said David Fleming, and the notice of the change of ownership of the feu given to the pursuers, the present defender ceased to be liable to the pursuers for payment of the whole feu-duties affecting the said subjects, and the performance of the whole obligations of the feu.”

The defender (Yeaman) pleaded acquiescence in the delay in making the erections; and that no penal feu-duty was exigible.

On 13th November 1883 the Lord Ordinary pronounced the following interlocutor—“Ordains the defenders, conjunctly and severally, to make payment to the pursuers of the following sums of money:— ( Primo), £125 sterling; with interest thereon at the rate of £5 per centum per annum from 11th November 1882 until payment; and ( secundo), £250 sterling, with interest thereon at the foresaid rate from 15th May 1883 until payment; and decerns ad interim, &c.

“ Opinion.—The first question is, whether the original feuar Mr Straton is personally liable to the superior for payment of the feu-duties, notwithstanding that he disponed the subjects to a purchaser in 1880; that his disponee was infeft, and duly entered with the superiors

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by the recording the disposition in the Register of Sasines; and that notice of the change of ownership of the feu has been given to the superiors?

The personal obligation undertaken by the defender is expressed in unusual terms. The ordinary form of feu-contract was not intended to bind the original vassal and his personal representatives after he had been divested, but to give the superior greater facilities for recovering payment from the vassal in possession of the feu, and to enable him to forfeit the right without losing his claim for arrears. For that purpose the personal obligation was introduced with a clause of registration, on which a charge might proceed without a farther constitution of the debt, and when the personal obligation is expressed in the usual form, which is very familiar to conveyancers, it is not disputed that it applies only to the vassal in possession for the time. But in the present case the feuar, departing from the usual style, has bound ‘himself and his heirs, executors, and successors whomsoever, conjunctly and severally,’ to pay the feu-duties. If the words ‘conjunctly and severally’ have any meaning, they must mean that the feuar binds himself and his personal successors conjunctly and severally with his successors in the feu. There can be no joint and several obligation if the actual possessor is the only person bound; and the defender's contention, therefore, that by the transmission of the feu-right he has been liberated from all liability denies all force and meaning to the plain terms of the obligation.

It is said that the personal obligation in a feu-contract is merely accessory to the real right, and that this is so in general is not disputed. But it is quite intelligible, and it is not unlawful, that a proprietor who grants a feu for building purposes, and who stipulates for no other price but the payment of an annual feu-duty alone, should in such a case as this require a more permanent obligation from the original feuar, who is the only person with whom he directly contracts. Until the buildings are erected the land produces no fruit from which the feu-duties can be recovered; and if the first feuar chooses to transfer the feu unbuilt upon to an insolvent purchaser, the superior loses his land, and has no effectual remedy for payment of the price. If in order to avoid that risk he intended to insist upon his original vassal continuing bound, jointly and severally, with any purchaser to whom he might dispone, he could adopt no form of words more clear or effectual for that purpose than those which are employed in the obligation in question. He might, no doubt, have taken a separate bond, as in the case of The King's College of Aberdeen v. Lady James Hay, 1 Macq. 596. But if the construction of the obligation is clear and ambiguous, it can make no difference that it is embodied in the feu-contract. The observations of the Lord Chancellor in the case cited appear to me directly applicable. The pursuers say they desired to have an obligation which should bind the defender and his representatives after they might have parted with the land, and such an obligation they have obtained. ‘It was for the party granting the obligation, if he did not intend it to operate to the full extent, which its language imported, to introduce words qualifying its generality.’ This he has not done, and I must therefore assume that he intended his words to have their ordinary construction.

There is no question as to the liability of the other defender for the original feu-duty. But it is maintained that the additional feu-duty stipulated until buildings shall be erected is a penalty which can only be demanded to the extent of such actual loss and damage as the pursuers can instruct. The plea is in my opinion untenable. It is a condition of the feu-right that double feu-duties shall be paid so long as they are unsecured by the erection of buildings. The feu-duty payable under such a condition is a part of the stipulated reddendo for the feu-right, and has nothing of the character either of penalty or of liquidated damages, nor is it in any sense a casualty, so as to be struck at by the Conveyancing Act of 1874. There is nothing uncertain in the mention of the payment, nor is it dependent upon any fortuitous event. But the vassal may relieve himself of his obligation to pay the double feu-duty, exigible so long as the ground remains unbuilt upon, by performing the obligation to build.”

The defender (Straton), reclaimed and argued—This was the first time it had been suggested that, the original vassal was to remain liable for the feu-duty after he had been divested of the subjects. It was not intended by the use of such a phrase to impose so heavy a burden upon the original feuar; and no such liability could be created by the use of such words. The only fair way to read the contract wss to attach no meaning to the words “conjunctly and severally,” and to view it as an abortive attempt to create an unreasonable obligation. The original vassal had certain obligations, and his successors in the feu had others, but the phrase “conjunctly and severally” could never be interpreted as making a temporary obligation permanent—Conveyancing (Scotland) Act 1874, sec. 4, sub-sec. 2; King's College of Aberdeen v. Lady James Hay, 1 Macq. 596.

Argued for the respondents — The words “conjunctly and severally” as used in a deed such as this would only admit of one interpretation, and their effect must be to make the original vassal and his heirs and executors liable for the feu-duties along with any successors in the feu — Juridical Styles, 6th ed. p. 56.

At advising—