Scottish Court of Session Decisions

This was an action at the instance of Walter Lorne Campbell Rankine of Dudhope, in the county of Forfar, John Campbell of Kilberry, and Mrs Rose Elizabeth Maclaine, or Rankine or Maquay, his tutors, and George Robertson, W.S., Edinburgh, their factor and commissioner, against David Rollo, residing at No. 36 Montgomery Street, Edinburgh, and others, the trustees of the deceased David Rollo, writer in Dundee, to have it found and declared that in consequence of the death of David Rollo, writer in Dundee, on 30th March 1880, the vassal last vested and seised in certain lands of which Walter Lorne Campbell Rankine was superior, a casualty of one year's rent became due on 30th March 1880 and was still unpaid, and that the rents of the lands belonged to the pursuers from the date of citation until payment. The lands were originally feued in 1792, by feu-contract dated 7th April 1792, by John Rankine of Dudhope, in favour of Alexander Donaldson, tenant at Milehouse. In that deed the casualty of relief payable at the entry of each heir was fixed at double the yearly feu-duty; but the composition payable at the entry of singular successors was untaxed. All the subsequent transmissions of the said lands were granted with and under the whole reservations, restrictions, provisions, and declarations contained, inter alia, in the said feu-contract, and bear expressly to be granted ‘ salvo jure cujuslibet.’ In none of these transmissions was there any clause of novodamus.

In 1841 John Cowper or Cowpar, the vassal then infeft, disponed the lands in favour of David Rollo. The disposition contained the following clause—“In which lands and others above disponed I hereby bind and oblige myself and my foresaids to infeft and seize the said David Rollo and his foresaids upon their own proper charges and expenses, and that by two several infeftments and manners of holding, one thereof to be holden of me and my foresaids in free blench for payment of a penny Scots in name of blench farm at Whitsunday yearly upon the ground of the said lands if asked only, and freeing and relieving us of all feu-duties and other duties and services exigible out of the said lands or others by our immediate lawful superiors thereof, and the other of the said infeftments to be holden from me and my foresaids of and under our said lawful superiors in the same manner that I, my predecessors and authors held, hold, or might have holden the same, and that either by resignation or confirmation, or both, the one without prejudice of the other.” David Rollo was infeft upon a charter of resignation by David Rankine, Esquire, of Dudhope, then the superior. The charter bore that the lands were granted in feu for payment “of the sum of £27, 4s. 1 1 2d. sterling yearly, in name of feu-duty, by equal proportions, at the terms of Martinmas and Whitsunday respectively, and doubling the said feu-duty at the entry of each heir and singular successor … and these for all other burdens, exactions, demands, or secular services whatever, which can be anywise exacted or required furth of the said subjects in all time coming.” The precept of sasine authorised sasine to be given in the lands, “always with and under the whole reservations, restrictions, provisions, and declarations contained in the original rights and titles of the said lands and others,” and the precept ended with these words, salvo jure cujuslibet.

David Rollo died on 30th March 1880 leaving a trust-disposition and settlement conveying his whole estate to the defenders.

Page: 595↓

The defenders were infeft on 18th June 1880.

The pursuers pleaded—“(2) A casualty of one year's rent of the subjects and others mentioned in the summons having become due by the defenders upon the death of the said David Rollo, the previous vassal, the pursuers are entitled to decree as concluded for. (3) The pursuers are entitled to draw the full rents, maills, and duties of the lands libelled from and after the date of the defenders' citation.”

The defenders pleaded—“(1) The composition for the entry of singular successors to the said lands being taxed at a duplicand feu-duty, the pursuers are only entitled to decree for payment of £27, 4s. 1 1 2d., and are liable to the defenders, who tendered that sum before the action was raised, in expenses. (2) Separatim, the pursuers'predecessor having, by the said charter of resignation of 1843, contracted with the defender's predecessor for the taxation of the entry of single successors at a duplicand feu-duty, and the same being thereby taxed accordingly, the pursuers are only entitled to decree as aforesaid. (3) The defenders and their authors having possessed the said lands for more than forty years upon the writs produced by the defenders, commencing with the said charter of 1843, they have thereby a valid prescriptive title to the lands, and the pursuers are barred from claiming more than a duplicand feu-duty.”