Scottish Court of Session Decisions

By contract of ground-annual, dated 2nd February 1886, the School Board of the parish of Neilston, Renfrewshire, acquired from Admiral Fairfax, of Fereneze and Ravenswood, a piece of ground on

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the estate of Fereneze extending to about three roods. In the original charter containing these subjects the entry of singular successors was untaxed. Being desirous of erecting buildings on the subjects, the School Board proposed to redeem the casualties of superiority under The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), sec. 15, which provides, inter alia, as follows:—“In cases where casualties are exigible on occasion of each sale or transfer of the property, as well as on the death of the vassal, such casualties may be redeemed on payment of two and a-half times the amount of the casualty, estimated as aforesaid ( i.e, ‘as at the date of redemption’), payable on said occasions: …. Provided always that before any such redemption, otherwise than by agreement, shall be allowed, any casualty which has become due shall be paid.” They failed, however, to come to terms as to the value of the casualties with Allan Graham Barns Graham, Esq. of Craigallian, who was then in right of the superiority.

This action was raised in December 1886 at the instance of the School Board against Mr Barns Graham for redemption of the casualties, and to have the redemption money fixed at £4, 1s. 11d.

The pursuers maintained that the amount payable by the pursuers in redemption of the casualties of superiority, applicable to their plot of ground, amounted to (1) two and one-half times the amount of the highest casualty for the said subjects, the highest casualty being one year's rent thereof (subject to the usual deductions), and (2) the casualty, being one year's rent (subject to the usual deductions), presently due and owing through the pursuers' acquisition of the subjects. They further maintained that the rental of the subjects at the date when they acquired them, and at the date of the action, did not exceed the sum of £1, 9s. 2d., being at the rate of £1, 18s. 11d. per acre, the amount commonly paid in the immediate neighbourhood. They tendered in payment £1, 3s. 5d. (being one year's rent of the subjects, £1, 9s. 2d. less the usual deduction of one-fifth or 5s. 9d.), along with £2, 18s. 6d. (being two and a-half times the amount of the highest casualty, viz., £1, 3s. 5d.) in redemption of future casualties incident to the subjects. These sums amounted to £4, 1s. 11d.

In defence it was maintained that the sum tendered did not represent the actual rent or value of the subjects per year; that the pursuers were using them not for agricultural but for building purposes, and under the contract of ground-annual they agreed to pay £15 a-year for the ground; further, that the annual worth of the subjects, which were in close proximity to a provincial town, and formed part of lands suitable for building purposes, was about £18, being at the rate of £24 per acre.

The pursuers pleaded—“(1) The pursuers are entitled to redeem the casualties of superiority of the subjects within described, upon payment of two and a-half times the amount of the highest casualty, estimated as at the date of redemption, payable on the occasions of the sale or transfer of the property, or on the death of the vassal, subject always to the payment of any past-due casualty. (2) The amount of said highest casualty, of which the said multiple is payable as aforesaid, consists of one year's rent of the said subjects as the same existed at the date of the pursuer's tender. (3) The fair annual rent of the said subjects does not exceed the sum of £1, 9s. 2d., and the sum payable in redemption of said casualties falls to be calculated on this footing.”

The defender pleaded—“(1) The subjects not being let for a rent, the actual worth or yearly value of the lands falls to be taken as the basis in calculating the redemption money, and in the circumstances the defender is not bound to accept the sum tendered. (2) The pursuers having, at or about the date of redemption, contracted to pay £15 yearly for the ground, the same must be held to be of at least that value.

A joint-minute for the parties was lodged, in which the following admissions were made:—“That at 13th May 1886, the date at which the pursuers became entitled to redeem the casualties payable to the defender in respect of the subjects which they acquired from Admiral H. Fairfax by contract of ground-annual dated 2d February and 23d April, and recorded in the Register of Sasines 13th May 1886, the ground in the immediate neighbourhood, so far as used for agricultural purposes, was let by Admiral Fairfax as grass parks at the rate of £1,18s. 11d. per acre, or thereby. That the ground acquired by the pursuers, which extends to three-quarters of an acre, if so let at the date mentioned, would have yielded an annual return of £1, 9s. 2d. or thereby. That the same had been let as part of a grass park at £1, 18s. 11d. per acre, or thereby, for the season to Martinmas 1885. That the purpose for which the pursuers acquired the ground was for building a school and offices, and that they have become bound to pay £15 a-year for it by contract of ground-annual dated 2d February and 23d April, and recorded on said 13th May, all in the year 1886, said £15 being at the rate of £20 an acre. That the piece of ground acquired by the pursuers is situated on that side of Admiral Fairfax's lands which adjoins the town of Barrhead, and is suitable for feuing. That Admiral Fairfax's lands extend in all to about 272 acres. That he and his predecessors have during fourteen years given off for building, pieces of ground, six in number (exclusive of the pursuers' ground), the title in four cases being taken in the form of contract of ground-annual, and in two cases in the form of long lease for 999 years, and the rates of annual payment therefor varying from £20 to £28 and upwards per acre.”

In an additional joint-minute it was further admitted—“(1) That the ground acquired by the pursuers was, at the letting in February 1886 of the grass park of which it had previously formed part, specially excluded from the set, and the rent payable by the tenant of the grass park reduced accordingly. (2) That the said ground was staked off by the surveyors after the first date, and prior to the last date, of the contract of ground-annual in favour of the pursuers. (3) That the contracts with the builders were entered into, and the ground broken in September 1886.”

The Lord Ordinary ( Kinnear) found, declared, and ordained in terms of the prayer of the petition.

“Note.—… The only question in this case is whether the sum tendered by the pursuers for

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the redemption of casualties of superiority is sufficient in amount to meet the superior's claim, and the facts upon which that question depends are fully ascertained by the minute of admissions.

In its actual condition at the time when the question became litigious, the ground would not have yielded more to the proprietor if it had been let for grazing, which was the only purpose for which it was then available, than £1, 9s. 2d. But it is admitted that it is suitable for building, and that the pursuers have acquired it for the purpose of building a school, and although there is no evidence or admission as to the revenue which the pursuers might derive from it if it were occupied with buildings, it is said that it must be assumed that if they were to sub-feu, or to grant a long lease for building purposes, they might obtain for it at least as much as £15 a-year, that being the amount of the ground-annual which they have agreed to pay to the former owner.

These considerations are, in my opinion, irrelevant to the question. The measure of the superior's right is stated by Lord Curriehill in Lord Blantyre v. Dunn, 20 D. 1198. According to the established construction of the enactment, the measure of the composition payable by an entering vassal is the rent payable to him by his tenant in the lands at the time of the entry if they be then set in lease to a tenant, or the sum for which they might then be let if ‘they are in the possession of the vassal himself.’ The superior has no concern with the price paid by his vassal to the former owner, and just as little with the prospective value of the land for building, if it is not actually built upon or set in lease for that purpose. The obligations of the contract of ground-annual are res inter alios to the defender. The vassal contemplates building. The fact that the ground is staked out seems to show that he intends to to build, but he is under no obligation to the superior to carry out his building operations, and the superior has no title to inquire whether he means to build or to sub-feu, or to put his land to any other use than that to which in its actual condition it may be applied. I think it established by the admissions that when the demand for redemption was made, which for the present purpose must be taken as equivalent to the time of the entry, the return which might have been obtained for the use of the land for a year was not more than £1, 9s. 2d. But the year's rent must be subject to the usual deductions, and it follows that the sum tendered is the full amount for which the pursuers are liable.

The defender founded on the case of Hill v. The Caledonian Railway Company, 5 R. 338, as an authority for taking the price into consideration. But that was a very exceptional case, and the ground stated by the Lord President for taking into consideration the price and the expenditure on the land is quite sufficient to show that the judgment has no application to such a case as the present. His Lordship says—‘The annual value of this subject cannot be tested in any of the usual ways, because it is impossible to conceive of the subject as the subject of a separate lease in any way whatever, and therefore it becomes indispensable to resort to some other mode of ascertaining what the composition ought to be.’

But there is no difficulty in supposing the ground in question to be let as a separate subject, and the ordinary rule must therefore be applied.”

The defender reclaimed, and argued—By the Statute 1469, c. 36, the terms on which an appraiser was to be entered was his paying the overlord a year's maill “as the land is set for the time.” At the date of the demand the lands were not “set for the time,” and thus it was purely a question of fact as to what in the absence of a lease was the actual value of the lands at the date when the pursuers became entitled to redeem the casualties. There was no hard-and-fast rule for calculating that value. Here, however, the contract of ground-annual afforded a fair and reasonable criterion of it. The £15 of ground-annual was just ground rent. If there had been a sub-feu, that sum would have been the measure of the casualty. In Hill v. Caledonian Railway Company, Dec. 21, 1877, 5 R. 386, the actual price paid for the land by the railway company was taken in fixing the composition. The Court in fact searched out the fair mode of arriving at the equitable result. In Allan's Trustees v. The Duke of Hamilton, January 12, 1878, 5 R. 510, the annual value of the minerals was added to the actual value.—See also Campbell v. Westenra, June 28, 1832, 10 S. 734; Stewart v. Bullock, January 14, 1881, 8 R. 381.

The pursuers replied—At the date when the subjects were acquired they were part of a grazing farm. It was reasonable that if they improved the subjects by building on them, they should get the whole benefit of their improvements. Lord Curriehill in Lord Blantyre v. Dunn, July 1, 1858, 20 D. 1188, had defined the measure of the superior's right to a composition. It was just the rent which a tenant would have given in the existing state of the land. The question did not depend on speculative conjectures as to what the land might possibly ultimately be worth. The sum offered was adequate— Cockburn Ross v. Heriot's Hospital, June 6, 1815, F.C.; Sivright v. Straiton Estate Company, July 8,1879, 6 R. 1208; M‘Laren v. Burns, February 18, 1866, 13 R. 580. The price paid was never held as the estimate except in Hill's case, and the reasons for that were obvious.

At advising—