Scottish Court of Session Decisions

By private Act of Parliament dated 22nd June 1825, the heirs of entail of the entailed estate of Grange were authorised to feu out the same after exposure to roup on certain conditions which were to be inserted in any original feu-charter or other feu-right granted by the heirs of entail, inter alia—“Declaring that it shall not be lawful to the vassals or persons severally in the rights of any such feus to sub-feu or sell all or any part of the said feus or lands, or absolutely to dispone the same, so as to be held of them or their heirs or disponees, or of any other interjected superior, but whatever part or parts of the said lands shall be so feued and disponed shall be holden immediately of and under the granter, and of the heirs of entail succeeding to the said entailed lands and estate, and of no other person or persons whatsoever, and the heirs and singular successors of the vassal or vassals or other person or persons in the right of the said feu or feus shall be bound to enter with the heir of entail in possession as aforesaid, and be infeft therein, within three months of the date of their purchasing or succeeding to the said feu or feus, or any part thereof.”

The late Sir John Dick Lauder, the heir of entail then in possession of the estate, feued out lots 254 and 255 of the Grange feus to Frederick Thomas Pilkington by feu-contracts dated respectively 1864 and 1867. They incorporated the provisions of the Act of Parliament mentioned above.

By the first contract Mr Pilkington bound himself and his heirs, executors, and successors whomsoever to pay certain feu-duties, “and doubling the said feu-duties … at the entry of each heir and singular successor … as the taxed casualties due upon such entry, and that over and above the feu-duty for the year in which such entry takes place … viz., Declaring that it shall not be lawful to nor in the power of the said Frederick Thomas Pilkington, or the vassal or vassals, or other person or persons in the right of the said feus, or either of them, to assign this precept of sasine, or the precepts of sasine to be contained in any of the future charters of the said subjects, but that they shall in all cases be bound and obliged to take infeftment thereon, or within three months from the date of delivery thereof and of such charters at furthest; and further declaring that it shall not be lawful to the said Frederick Thomas Pilkington, or the vassals or persons severally in the rights of the said feus or either of them, to sub-feu or sell all or any part of the said feus or lands hereby disponed, or absolutely to dispone the same so as to be held of them or their heirs or disponees or of any other interjected superior, but whatever part or parts of the said lands shall be so feued and disponed, shall be holden immediately of and under the said Sir John Dick Lauder, the granter, and of the heirs of entail succeeding to the said entailed lands and estate, and of no other person or persons whatsoever, and the heirs and singular successors of the said Frederick Thomas Pilkington, or the vassal or vassals, or other person or persons, in the right of the said feus, hereby disponed, or either of them, shall be bound to enter with the heir of entail in possession as aforesaid, and be infeft therein within three months of the date of their purchasing or succeeding to the said feus or any part thereof … declaring also that all sales, dispositions, or other conveyances and transmissions, legal or voluntary, of the whole or any parts or portions of the said lands, upon terms in violation of or inconsistent with these conditions, declarations, and provisions, shall be ipso facto void and null to the disponees thereof, with all that shall follow or may follow thereon… . All which clauses, and the conditions, declarations, and provisions thereof, with this present clause or provision respecting the same, shall be repeated in the instrument or instruments of sasine to follow hereupon, and the same shall also be repeated in all the after conveyances, transmissions, charters, and investitures of the said feus or either of them, otherwise this feu-contract and such sasines, conveyances, transmissions, charters, and investitures of the said feus or either of them shall not only be void and null, but the said Sir John Dick Lauder and every other heir of entail in possession of the said entailed lands and estates, omitting to repeat the same in the subsequent charters or other investitures granted by him or them of the said feus or either of them, shall thereupon, for himself or herself only, incur an irritancy, as in a case of contravention of the said entail; and in the like manner the said vassal or vassals, or other person or persons in the right of the said feus or either of them, contravening any of the conditions, declarations, and provisions above expressed, or omitting to insert the said clauses in any instrument or instruments of sasine to be taken of the said feus or either of them, or in any of the transmissions or conveyances thereof, such sasines, transmissions, and conveyances shall not only be void and null, but such vassal or vassals, or other person or persons in right of the said feus or either of them, shall forfeit and lose all right and title thereto, and the same shall belong to the said Sir John Dick Lauder or the heir of entail in possession as said is, in the same manner as if the said feus had never been granted.”

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Similar clauses were inserted in the contract of 1867.

By disposition dated 1869 Mr Pilkington disponed parts of these subjects to Lady Elizabeth Hamilton Dalrymple, who conveyed the same to Mr Samuel Raleigh, dated May 1872. Mr Raleigh acquired two other parts of the said subjects from Mr Pilkington by disposition dated 1872. These were all acquired under the provisions in the original feu-rights, and the dispositions were confirmed by the superior by charter of confirmation in 1873, which contained the following provisions—“Doubling the said feu-duty of one hundred and eighty-five pounds seventeen shillings and sixpence halfpenny sterling, being at the rate of twenty-five pounds sterling per imperial acre per annum, at the entry of each heir and singular successor to the said lands and others, hereby confirmed as the taxed casualty due upon such entry, and that over and above the feu-duty for the year in which such entry takes place.”

A casualty of a duplicand of the feu-duty was paid both by Lady Dalrymple and Mr Raleigh on acquiring the feus.

Mr Raleigh died on 26th July 1882, and his trustees on 14th November 1882 paid the superior a casualty of £371, 15s. 1d. Mr Raleigh's trustees in May 1887 sold the subjects in question to Mr George Boyd Thornton under the conditions, &c., contained in the prior conveyances and feu-contracts, and Acts of Parliament, and under burden of payment of a duplicand of the feu-duty of £185, 17s. 6 1 2d., and entry by each heir or singular successor.

Sir Thomas Dick Lauder, as superior of the subjects, now sued Thornton for payment of the casualty of £371, 15s. 1d., as due on 17th May 1887, the date of the defender's infeftment.

He pleaded—“(1) The said casualty being due by the defender to the pursuer and unpaid, the pursuer is entitled to decree in terms of one or other of the two first alternative conclusions of the summons. (3) The defender having purchased the feu, and being bound under the feu-contract to enter with the pursuer as superior thereof within three months after the same was conveyed to him, and to pay the casualty on recording the disposition in his favour, is liable in the sum sued for to the pursuer, who is entitled to decree as concluded for.”

The defender averred—“Explained that Mr Pilkington, the original vassal, is still alive, and that Mr Samuel Raleigh's trustees, from whom the defender purchased the subjects, are the last vassals infeft in the subjects, and who have paid a composition to the pursuer as for their entry. These trustees are still alive, and the fee is full. The subjects belonging to the defender consist of the whole of lot 255, and part of lot 254 of the Grange feus.”

He pleaded—“(6) The feu-rights, as affected by the Statute of 1874, affording no ground for any of the actions herein pursued, the defender is entitled to absolvitor. (7) The exaction attempted by this summons of a fee or charge upon mere change of ownership, while the vassals who paid a casualty are still alive, is contrary to the Statute of 1874 and to common law, and the defender is entitled to absolvitor. (8) The present summons not being warranted by the statutes relating to feus, nor by the common law, nor by the terms of the feu-rights, the defender is entitled to absolvitor, with expenses.”

The 3rd sub-section of section 4 of the Conveyancing Act 1874 provided—“Such implied entry shall not prejudice or affect the right or title of any superior to any casualties, feu-duties, or arrears of feu-duties which may be due or exigible in respect of the lands at or prior to the date of non-entry; and all rights and remedies competent to a superior under the existing law and practice, or under the conditions of any feu-right for recovering, securing, and making effectual such causalties, feu-duties, and arrears, or for irritating the feu ob non solutum canonem, and all the obligations and conditions in the feu-rights prestable to or exigible by the superior, in so far as the same may not have ceased to be operative in consequence of the provisions of this Act or otherwise, shall continue to be available to such superior in time coming, but provided always that such implied entry shall not entitle any superior to demand any casualty sooner than he could by the law prior to this Act or by the conditions of the feu-right have required the vassal to enter or to pay such casualty irrespective of such entry.”

On 2nd April the Lord Ordinary ( Kinnear) granted decree in terms of the petitory conclusion of the summons.

“ Opinion.—By the terms of the contracts creating the feu-right the various parcels of land feued out are to be held for payment of certain specified feu-duties, ‘and doubling the said feu-duties at the entry of each heir and singular successor to the said pieces of ground respectively, as the taxed casualties due upon such entry, and that over and above the feu-duty for the year in which such entry takes place.’ The feu-contracts prohibit subfeuing, and stipulate that whatever parts of the land shall be disponed ‘shall be holden immediately of and under’ the granter, and the heirs of entail succeeding to him; and that heirs and singular successors of the vassal ‘shall be bound to enter with the heir of entail in possession, and be infeft within three months of the date of their purchasing or succeeding.’

All of these conditions were legal by the law in force when the contract was made, and were binding upon the vassal, and upon all persons deriving right from him. He could not relieve his disponees of the conditions on which his own right was created, and accordingly the conveyances, both to his immediate disponees and to the defender, are made subject to the conditions of the original feu-contracts, and, among others, to the condition that a sum equal to double the feu-duty shall be paid on the entry of each singular successor. The defender therefore took his title with notice of the terms on which the right was granted, and in particular of the claim which the superior now seeks to enforce.

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But for the Act of 1874 the defender could not have taken infeftment on the conveyances in his favour without the intervention of the superior. The vassal's precept would have had no validity in itself, and an infeftment taken upon it would have been a mere nullity until it had been confirmed; but the superior could not have been compelled to grant a charter of confirmation, or a charter of resignation, except upon the terms stipulated in the feu-contract. The defender therefore could not have acquired a real right without making payment of double the feu-duty to the superior. As the law stands, since the Act of 1874 he is duly infeft and entered by the registration of his conveyance. But the statute does not relieve him of the conditions, upon which alone he could have acquired a real right by the former law. By section 4, sub-section 3, the superior has right to enforce payment of any casualties or feu-duties which may be due and exigible at or prior to the date of the implied entry, ‘provided that the implied entry shall not entitle any superior to demand any casualty sooner than he could by the prior law, or by the conditions of the feu-right, have required the vassal to enter, or to pay such casualty irrespective of entering.’

The case is within this enactment, and is not affected by the proviso, because by the conditions of the feu-right the defender was bound to enter, and to make the payment demanded at or prior to the date of his entry.

It is said that the conditions which the superior desires to enforce would have been ineffectual under the former law. But I see no reason to doubt their validity. Prior to the Act of 1874 a prohibition against subfeuing was legal, and its legality is recognised in the Consolidation Act of 1868. No purchaser therefore, could have obtained infeftment except upon the terms stipulated in the contract. The defender's counsel relied upon a passage in Duff's Conveyancing, page 216, for the purpose of shewing the inefficacy of all conditions for creating what the writer calls an artificial sort of non-entry. But the difficulty which Mr Duff points out does not arise in the present case. There might be great difficulty in enforcing such stipulations either under the former law or under the present, so long as a purchaser is content with a personal right, and does not attempt to take infeftment. The superior could not compel a new entry so long as an entered vassal remained in life, and he could not enforce the obligations of the contract against a purchaser who had not taken up the feu-right. This is the meaning of the passage cited. But Mr Duff does not suggest that the superior should have any difficulty in enforcing the conditions of the contract against a purchaser who has made himself a party to it by taking infeftment in the lands, and that is the position which the defender has assumed.

It is no hardship to him that he should be required to pay the sum sued for, because it is merely a part of the price which by the terms of his title he had undertaken to pay. It must be assumed that his liability to the superior was taken into account in fixing the remaining part of the price which he pays to his immediate author.

The defender's contention is in effect that he is entitled to hold the superior's land without paying the price, which he is taken bound to pay by the title which embodies his contract with the persons from whom he purchased, and the contract which through them he has made with the superior. The ground on which he claims to have obtained this advantage is that by reason of certain technical difficulties the superior has no remedy. But in so far as it concludes for payment, the action appears to me to be as correct in form as it is well founded in substance. I do not think it can be maintained as a statutory action in lieu of a declarator of non-entry, because that is available only where the lands would have been in non-entry but for the Act. But the defender by his own act has obtained an entry subject to the conditions of the feu-contract. It cannot be maintained that the entry so obtained discharges the pursuer's claim for the price, on payment of which alone the defender was entitled to procure it. And it follows that the pursuer has a good action to enforce such payment.”

The defenders reclaimed, and argued—1. The rights of the pursuer prior to the Conveyancing Act of 1874 fell to be first considered. The original feu-charter contained no obligation to pay a casualty apart from an entry. A casualty could only be demanded on the death of the last entered vassal. The obligation to enter in three months was only for the purpose of compelling obedience to the stipulation against subinfeudation. Such a stipulation did not entitle a superior to compel an entry— Morris v. Brisbane, February 21, 1877, 4 R. 515. The only difference between that case and this was that here the vassal was bound to enter in three months. Such a condition could not have been enforced by an action ad factum prœstandum, or by a reduction, but only by declarator of irritancy— Colquhoun v. Walker May 17, 1867, 5 Macph. 773. It would have been otherwise if the defender had been entered ad omnia, but the stipulation was only intended to carry out the prohibition against subinfeudation. The duplicand of the feu-duty on entry was only the ordinary provision taxing an entry, and did not imply payment at any other time or earlier than by the common law under which on the death of a predecessor his heir or successor was bound to enter. The law was unfavourable to creating a status of artificial non-entry—Duff's Feudal Conveyancing, 216; Bell's Conveyancing, 621. 2. With regard to the pursuer's rights under the Act of 1874, assuming that before 1874 the superior could not have compelled an entry, and that therefore the superior could not have irritated the feu before the date of the Act of 1874, the question was whether the 4th section of that Act made any difference? The two clauses of irritancy in the charter

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applied (1) to deeds and transmissions; (2) omissions to insert clauses in such deeds or transmissions both in violation of or inconsistent with the conditions of the charter. The first clause most nearly applied to this case, but the pursuer did not allege that the sale to the defender involved the irritancy. It concerned rather the superior as heir of entail, and related only to the consequences of subinfeudation. In the second clause the words “any of the conditions, declarations, and provisions above specified” could not cover all the conditions of the feu-contract, for if so the first irritancy clause would be superfluous. The conditions referred to were those immediately preceding and relating to the omission to insert clauses. No words in either clause were appropriate to bring an irritancy against anyone who had done nothing. The principal change in the relation of superior and vassal made by the 1874 Act was to make infeftment equal to entry by confirmation. Sub-section 3 of the 4th section saved the rights of both superior and vassal. Morrison's Trustees v. Webster, May 16, 1878, 5 R. 800, did not apply. There the special terms of the feu-contract made the compositions debita fundi recoverable by poinding the ground irrespective of entry. By the 1874 Act such clauses of irritancy were now of no effect. The superior could enforce his feu-contract only “in so far as the same may not have ceased to be operative in consequence of the provisions of the Act.” It was only indirectly by exposing the title to risk that the irritancy could formerly cause an entry to be taken. The Act removed this risk and gave so much to the vassal. Under the Act only such a clause as in Morrison's Trustees would warrant such an action independent of any entry being taken.

Argued for the respondent—1. As to his rights before 1874. Formerly a superior was never bound to give an entry, and therefore the question could not arise whether a singular successor was bound to give an entry. But if the vassal failed to obey the provisions against subinfeudation and as to entry in three months the superior would have irritated the feu. The provision against subinfeudation had been obeyed—the holding being a me—and the charter expressly declared that a purchaser from Pilkington should enter in three months— Colquhoun's case, 5 Macph. 773, only decided that the superior's remedy was incompetent in the special circumstances. Here the obligation to enter was a condition of the right, and could have been enforced as debitum fundi— Morrison's Trustees v. Webster, May 16, 1878, 5 R. 800; Stewart v. Gibson's Trustees, December 10, 1880, 8 R. 270. 2. Under the 1874 Act—The defender forgot that he was entered by the 4th section, (3) and (4). The superior had right to the sum sued for at entry. In Moir's case there was a clause forbidding subinfeudation, but none compelling entry within a certain time.

At advising—