Scottish Court of Session Decisions

This was a personal action at the instance of the Scottish Drainage and Improvement Company, incorporated under the Scottish Drainage and Improvement Company's Acts of 1856 and 1860 (19 and 20 Vict. cap. lxx., and 23 and 24 Vict, cap. clx.), against the Rev. John Peter Campbell, minister of the parish of Urquhart, Drumnadrochit, Inverness, to recover payment of certain rent-charges upon the glebe for improvement debt incurred during the tenancy of the previous incumbent.

These rent-charges were constituted by absolute orders executed by the Inclosure Commissioners under the said Acts according to the form prescribed by Schedule C, appended to the Act of 1856. The following is a specimen:—“The Inclosure Commissioners for England and Wales, in pursuance of the Scottish Drainage and Improvement Company's Acts, do, by this absolute order under their hands and seal, charge the fee of the lands mentioned in the schedule annexed hereto with the payment to the Scottish Drainage and Improvement Company, their successors and assignees, of the yearly sum of Sixteen pounds eight shillings and eightpence, payable half-yearly on the 15th day of May and the 11th day of November in every year, for the term of twenty-five years, and being a proportionate repayment, according to the table annexed, of the capital sum of Two hundred and forty-five pounds five shillings, with interest at Four pounds ten shillings per centum per annum, the first half-yearly payment to be made on the 15th day of May One thousand eight hundred and seventy-eight.”

The Scottish Drainage and Improvement Company's Act 1856 (19 and 20 Vict. cap. lxx.) provides as follows:—

“Section 49. When a provisional order for charging any lands to be improved has been made, and the commissioners are satisfied that the works of improvement contracted to be executed, or some part of such works, have been properly executed, the commissioners shall execute a charge under their hands and seal, upon the fee of the lands improved, or to be improved, or some sufficient part thereof, for the whole amount by the contract agreed to be charged on the land to be improved, if all the works contracted for are so executed or a proportional part of such amount, if part only of such works are executed, as the case may be, to be paid with interest to the company.”

“Section 52. When the fee of any land is, in pursuance of this Act, charged with any money, the company shall be entitled to, and shall have from the time from which such rent-charge shall commence and take effect, a charge upon such land for the money ascertained and approved by the commissioners

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as aforesaid, with such interest as contracted for, not exceeding five pounds per centum per annum, or, if there be not any contract as to the interest thereon, at the rate of five pounds per centum per annum; and such lands shall thenceforth be and continue liable to the payment of such charge, and such charge shall have priority over every other then existing and future charge and incumbrance whatsoever, upon or affecting such lands, except feu-duties, ground-annuals, and other charges incident to tenure, teinds, and any charges created or to be created under any Act authorising advances of public money for drainage, and any charges previously created under the provisions of any Act of Parliament authorising the charging of land with the expense of and incident to the improvement of lands by or under the sanction of the Inclosure Commissioners, respectively, if any.”…

“Section 61. Every charge on land by virtue of this Act may be recovered by the company, or the person for the time being entitled to the same, by the same means and in like manner, in all respects, as any feu-duties, or rent, or annual rent, or other payment out of the same lands would be recoverable in Scotland.”

The defender averred—“The pursuers' Act of Parliament contains no clause importing personal liability against a limited owner who happens to succeed to an estate charged with improvement expenditure, and the absolute order under which the expenditure is charged, charges only ‘the fee of the lands mentioned in the schedule annexed thereto with the payment of the several instalments therein mentioned.’”

The pursuers pleaded—“(1) The defender, as minister of the parish of Urquhart, being in possession of the glebe thereof, is liable to make payment of the rent-charges sued for. (2) The rent-charges sued for being a preferable burden on the glebe, the same are payable by the minister for the time being of the parish, and the pursuers are entitled to decree against him therefor as sued for, with expenses.”

The defender pleaded—“(1) The averments of the pursuers are irrelevant. (2) There having been no contract between the defender and the pursuers, he is not personally liable, and should be assoilzied, with expenses.

The Lord Ordinary ( M'Laren) pronounced the following interlocutor on 15th June 1887—“Finds that the pursuers have no personal claim or right of action against the defender: Therefore assoilzies the defender from the conclusions of the action, and decerns: Finds the defender entitled to expenses, &c.

“ Opinion.—This is an action at the instance of a company constituted for the purpose of advancing money for the improvement of lands against the incumbent of a rural parish claiming payment of eight half-yearly instalments of a charge upon the glebe for improvement debt incurred during the tenancy of the previous incumbent.

“The defence (so far as relevant) is that the charge is not a debt personally affecting the defender, and that the pursuers can only recover their instalments by real diligence directed against the lands secured by the charge. The defence appears to me to be well founded, having regard to the terms of the deed libelled, and the private Acts of Parliament which regulate the powers and rights of the company.

The deed libelled is called an absolute order, and is in the form of Schedule (C) of the company's principal Act. It declares that the Inclosure Commissioners for England and Wales (who under the Act have certain quasi-judicial functions) ‘do, by this absolute order under their hands and seal, charge the fee of the lands mentioned in the schedule annexed hereto with the payment to the Scottish Drainage and Improvement Company, their successors and assignees, of the yearly sum of £, &c., for the term of, &c.’

“In this order the important words evidently are the words ‘charge the fee of the lands. The word ‘charge’ is not one of the customary technical terms which are used by the conveyancers of this part of the United Kingdom, and I am not aware that the word has been the subject of judicial interpretation in Scotland. But if the Judge is entitled to use his knowledge of the English language as a guide to the interpretation of such expressions, it is my opinion that a charge on the fee of lands means nothing more than a real security unconnected with personal obligation—in other words, a real burden on the lands. If, in the absence of any authorised interpretation of the term, I am at liberty to consider the probable intention of the Legislature, I may say that I think it is very unlikely that Parliament should authorise the minister of a parish to enter into obligations connected with the improvement of the glebe in such terms as would be personally binding on his successors. I will add that the Act authorises advances to be made on the security of entailed estates in Scotland, and that in my opinion it is unlikely that Parliament intended that such debts should be personally binding on succeeding heirs of entail.

“Apart from personal obligation, the pursuers have an excellent security for their advances, because I observe that by section 52 their advances are to have priority over all other incumbrances, existing or future, except charges of the like nature. Again, I observe, it is most improbable that the Legislature would have granted preferential rights to the company if the company was also to have the rights of a creditor in a bond and disposition in security against the person in possession.

“Section 49 of the principal Act authorises the execution of charges in the form of the schedule by the Drainage Commissioners, but it does not define the nature of the security to be constituted., The pursuers, as I understand, rest their case mainly on the provision of section 61, which provides that such charges may be recovered ‘by the same means and in like manner as any feu-duties or rent or annual rent, or other payment out of the same lands would be recoverable in Scotland.’ Now, as I read this clause, the expression ‘may be recovered,’ at the beginning of the section is grammatically and logically connected with the words ‘out of the same lands,’ near the end of the section, and this connection is in no way disturbed by the reference to feu-duties, rents, and annual rents in the intervening part of the sentence. The company are to have all the remedies against the heritable estate which are competent to superiors or creditors in obligations of annual rents, but it is not said that they are to have a remedy against the person. We know that the remedy against the

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person is very different in the two illustrative cases. The superior's remedy is against the entered vassal, the remedy of the creditor in a ground annual rent is against the debtor and his heirs. It can hardly be supposed that Parliament intended to give a concurrent right of relief against heirs of the debtor and also against successors in the estate. But it is quite possible that the company were intended to have every remedy against the estate which is known to the law, and in this view the enumeration of different kinds of real securities in this section becomes intelligible. There being no conclusions for real diligence it follows that the defender is entitled to absolvitor.”

The pursuers reclaimed, and argued—The pursuers have a personal claim against the defender for the rent-charge. The argument against the pursuers is that the absolute order by its terms only charges the fee of the lands without imposing any personal obligation on a party in the position of the defender. But sec. 61 involves the personal liability of the possessor at the time, for (1) a personal action is a habile mode of recovering a feu-duty from the vassal, sub-vassal, or from anyone in possession and in right of the rents and fruits; (2) as regards rent, in a question between landlord and tenant there is a personal action against the tenant; and (3) annual rent, which is the best illustration of the contention, is payable by an heir of entail in possession and the succeeding heirs of entail on money expended by order of the Court—sec. 13 of the Rutherfurd Act. In ordinary circumstances the borrower is personally liable for interest on borrowed money. The Lord Ordinary's reading of sec. 61 is not grammatical. The words “out of the lands” are merely used as descriptive of the kinds of payment. It is improper to read them after the word “recovered.” All the kinds of payment mentioned are recoverable by personal action. [ Lord President—If personal liability is not imposed in the absolute order it must be clearly made out from the words of the statute.] It is imposed by sec. 61. The object of the Act is to put owners in funds to make improvements, and it is not unlikely that the object was to make a successor in improved lands liable for money spent in improvements which have benefited him. Sections 68 and 69 imply personal liability as well as a real remedy against the land. [ Lord President—By sec. 70 a tenant may consent to be charged; then he is to be personally liable. Now, there is no such provision for personal liability elsewhere.] But it is just as clearly the intention of the Act that the present defender shall be personally liable.

Argued for the respondent—It is conceded that there is no personal contract between the parties, and the Act does not impose any personal obligation on the respondent. By a proper construction of sec. 61, the charge is only recoverable by real diligence. The words “out of the lands” must be read into the whole section. “Out of the lands” is clearly not applicable to each kind of payment, for payment of rent is not recoverable out of the lands. The result of any other construction would give the remedy of personal diligence against both the present incumbent and the representatives of the previous incumbent, and this supposition is not reasonable in view of the terms of the absolute order, except in the case of annual rent, which is different.— Royal Bank of Scotland v. Gardyne, March 8, 1851, 13 D. 912— rev. May 13, 1853, 1 Macq. 358. Under sec. 27 an obligation might have been imposed on a successor in possession, but this has not been done. The intention of the statute is that the pursuers shall have only the remedy of real diligence for enforcing payment of their debt.

At advising—