Scottish Court of Session Decisions

William Moray Stirling of Abercairney was heir of entail of the lands of Abercairney and others, under a deed of entail dated in 1769. In the year 1849 he disentailed the said lands, and executed a new deed of entail to and in favour of himself and the heirs whatsoever of his body, whom failing Mrs Christian Moray or Home Drummond, his sister, whom failing to Charles Home Drummond, her second son, and the heirs whatsoever of his body, whom failing certain other heirs. The deed contained a provision that in case any of the heirs of entail succeeding under the deed should succeed to the estate of Blair Drummond, and should, at the time of his death, have (in addition to an eldest son, or descendant of an eldest son) a second or other younger son, or descendant of such, then the estate of Abercairney should, upon the death of such heir, descend to and devolve upon his or her second or younger sons successively in their order, and the heirs whatsoever of their bodies respectively. Infeftment followed in favour of William Moray Stirling, on 27th September 1849.

William Moray Stirling died on 9th November 1850, and Mrs Christian Moray or Home Drummond was thereafter duly served as his nearest and lawful heir of tailzie and provision. Sasine, dated 14th October 1851, followed on the decree of service in her favour, but no entry was

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taken by her with the Crown, which was the superior.

By disposition dated 30th October 1851 Mrs Home Drummond disponed the entailed lands to her second son, the said Charles Home Drummond, under reservation of her liferent, and he was duly infeft conform to instrument of sasine recorded in the General Register of Sasines 7th August 1854. In 1868 Charles Home Drummond, who assumed the name of Charles Stirling Home Drummond Moray, was served nearest and lawful heir of tailzie and provision in special to his uncle, the entailer, and the decree of service was recorded in the register of sasines on 16th August 1868.

When the Conveyancing (Scotland) Act came into force, Charles Drummond Moray was by operation of the statute entered with the Crown as its vassal, but no casualty was then paid in respect of the said entry. At that time Charles Drummond Moray's elder brother was alive. He died on 3rd June 1876, and Charles Drummond Moray then became heir of the former investiture. The Crown did not settle with Charles Drummond Moray for several years thereafter, but finally accepted relief-duties from him upon the footing that being the heir alioqui successurus he would have been entitled to an entry as such. The receipts granted by the Crown contained no reservation.

Charles Drummond Moray died in September 1891, and was succeeded in the said lands by his second son William Drummond Moray, who was infeft, and thus impliedly entered with the Crown. At the date of his succession and entry his elder brother was alive, and William Drummond Moray accordingly did not possess the character of heir alioqui successurus.

In May 1893 the Lord Advocate, as representing the Crown and the Commissioners of Woods and Forests, brought the present action against William Drummond Moray for declarator that in consequence of the death of Charles Drummond Moray, who was the vassal last vest and seised in the lands of Abercairney, a casualty of composition had become due to the Crown, as superior at the date of the defender's infeftment, and for payment of such sum as should be ascertained to be the amount of said casualty.

The grounds upon which the claim of the Crown was made and resisted, appear from the arguments and the opinion of Lord Kinnear.

On 8th November the Lord Ordinary ( Wellwood) pronounced this interlocutor—“Finds that in respect of his implied entry with the Crown in the lands named in the summons, or such of them as are held by the Crown, the defender is liable in payment of a causalty of composition; therefore to that extent repels the defences, but in respect that it is not admitted by the defender that the whole of the lands named in the summons are held of the Crown, continues the cause in order that it may be ascertained whether all, and if not which, of the said lands are so held, and that the amount of the composition may be ascertained and fixed, &c.

“ Opinion.—This case raises the question whether an implied entry under the Conveyancing Act of 1874, followed by acceptance without reservation by the superior of relief duty from the heir of entail in possession under a new entail, has the effect of enfranchising the investiture created by the deed of entail, so as to preclude the superior from thereafter demanding composition, when the succession opens to one who is not alioqui successurus.

[ His Lordship then narrated the circumstances in which the action was brought.]

I am of opinion that the Crown is entitled to a casualty of composition. Under the law as it stood prior to the passing of the Act of 1874, if a vassal, purchaser, or assignee applied for a charter of confirmation, and tendered a year's rent, the superior was bound to grant without reservation or qualification a charter in favour of whatever persons the vassal, purchasers, or assignee might please to name, and to embody in the charter, if required, the fetters of a strict entail; with the result that the whole persons named in the charter, in whatever degree of relationship they stood to the vassal, purchaser, or assignee, or to each other, were entitled as heirs of the investiture to obtain an entry on payment of the casualty of relief. By granting such a charter the superior was held to have enfranchised the investiture.

Again, the superior was bound, when applied to for a charter of confirmation of a deed of entail which changed the destination in the former investiture, to grant such a charter on payment of relief duty only, if the person first called was also the heir of the former investiture; but he was entitled to insert in the charter a reservation of his right to claim composition when the succession should open to one who was not heir alioqui successurus.

Such being the old law, the Conveyancing Act of 1874, which abolishes charters and writs by progress, provides (section 4, sub-section 2)—‘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.’ If the statute had stopped there the superior's rights would have been seriously affected in various ways. For instance, formerly if the superior granted a charter of confirmation he was held to have discharged all claims for past feu-duties and casualties, and therefore it became necessary to provide, as is done by section 4, sub-sections 3 and 4, that the superior's rights in that respect should not be affected by the implied entry.

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Again, when a superior was applied to to grant a charter by progress, he was entitled, unless barred by prescription, to recur to the original charter as showing the measure and extent of the feu right. He was also entitled to refuse without a consideration to enlarge the vassal's rights by granting an assignable charter, or without payment of composition or reservation to insert a tailzied destination different from that in the prior investiture.

But if the vassal's implied entry were to be held to be equivalent without qualification to a writ of confirmation granted by the superior, the superior might be held to have lost his right to object to the terms of the disposition which was impliedly confirmed. Therefore by section 4, sub-section 2, it is provided:—‘But such an implied entry shall not be held to confer or confirm any rights more extensive than those contained in the original charter or feu-right of the lands, or in the last charter or other writ by which the vassal was entered therein.’

It seems to me, then, that after the passing of the Act of 1874 the superior's rights stood thus—Charters by progress being no longer necessary or competent, and the vassal being entered as if he had obtained a writ of confirmation, the superior could no longer protect himself by inserting a reservation in the charter, or refusing to grant a charter until he was paid composition. But his right to demand a casualty on each implied entry remains intact. If the heir thus entered was alioqui successurus, the superior was entitled to demand and receive relief-duty only. That is what the Crown did in this case when they settled with Charles Drummond Moray. My own view is (but this does not affect the present question) that the Crown might have demanded a year's rent from him, because at the date of his implied entry, the passing of the Act of 1874, he was not heir alioqui successurus, his elder brother being still alive. If the Crown had then received a composition the new investiture would undoubtedly have been enfranchised. But relief-duty only was paid, and the only ground upon which the defender maintains that composition is not now exigible in respect of his entry is that because the Crown, in the receipt granted to Charles Drummond Moray, did not insert a reservation to claim composition, it must be held to have enfranchised the destination just as if a charter of confirmation had been granted without reservation or qualification.

I cannot adopt this view. I do not think that any such reservation was required. The receipt was not in the circumstances a proper document in which to insert it. There was no transaction between superior and vassal, and no question except as to the amount of the casualty then due was raised. The most plausible view of the defender's case is that if the Crown had exacted composition from Charles Drummond Moray the defender would only have been liable in relief-duty. But this is not a fair way of putting the case. The Crown accepted what both parties then believed to be the appropriate casualty in any case; and the broad facts remain that the Crown has not received composition from any heir of tailzie, and it has never expressly discharged its right to claim composition. I therefore think that the Crown is not precluded from now demanding composition.”

The defender reclaimed, and argued—The defender was the heir of the existing investiture, and was therefore only liable in relief-duty. As the law stood prior to 1874, a vassal was entitled to tender a disposition to his superior with a destination to any succession of heirs, and the superior was bound to grant a charter upon payment of a composition. If the superior inserted a clause in such charter reserving his right to claim a composition on the entry of each succeeding heir, the reservation was ineffectual— Lockhart v. Denham, July 10, 1760, M. 15,047; Stirling v. Ewart, September 4, 1844, 2 Ross's Leading Cases, 340. When, however, the heir under the new investiture was also entitled to succeed as heir under the former investiture, he was entitled to be entered upon payment of relief-duty, but the superior might reserve his right to demand a composition from the first vassal who was not also heir under the old investiture— Marquess of Hastings, &c. v. Oswald, May 27, 1859, 21 D. 871; Mackintosh v. Mackintosh, March 5, 1886, 13 R. 692; Mackenzie v. Mackenzie, July 4, 1777, M. 15,053; Stuart v. Hamilton, July 18, 1889, 16 R. 1030. Payment of a composition was not in any way essential to the enfranchisement of a new investiture. If the superior granted a charter to the heir under a new destination, that enfranchised the investiture although neither composition nor relief was exacted, and the superior's representatives could not thereafter refuse to enter a succeeding heir on payment of relief-duty. In short, the right of the vassal to enter on payment of relief depended on whether or not he was the heir of the existing investiture. Thus in the case of the Duke of Hamilton v. Baillie, infra, the vassal was held entitled to be entered on payment of relief-duty only, in respect that he was the heir of the standing investiture although no composition had been paid in respect of that investiture. The pursuer could derive no assistance from the dicta of Lord Deas in Advocate General v. Swinton, infra, for these had been disapproved in the House of Lords— Johnstone v. Duke of Buccleuch, July 25, 1892, 19 R. (H. of L.) 39, per Lord Watson, p. 42. To ascertain the effect of the Conveyancing Act of 1874 and the implied entry thereby introduced, it was necessary to look to the provisions of that Act. The statute did not leave the rights of superior and vassal in respect of casualties just as they were before. The superior might be benefited as in Rankin's Trustees v. Lamont, February 27, 1880, 7 R. (H. of L.) 10, or the vassal, as in Lord Advocate v. Moray, June 17, 1890, 17 R. 945. In the present case the effect of the statute was that Charles Drummond Moray was impliedly entered as heir under the new

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destination contained in the deed of 1849, the old investiture being swept away— Stuart v. Hamilton, supra. The defender accordingly was the heir of the existing investiture, and as such was only liable in payment of relief-duty, and the fact that the Crown had failed to exact the composition to which they were entitled from his predecessor could not affect him. Supposing that the Crown had granted a writ of confirmation in Charles Drummond Moray's favour in 1874, it certainly could not have claimed a composition from the defender unless the right to do so had been expressly reserved. If, then, the Crown intended to reserve that right when it accepted relief-duty from Charles Drummond Moray, the reservation ought to have been inserted in the receipts. There could be no presumption in law that such a reservation was intended, for it was not the invariable practice of the Crown to enforce its extreme rights on the completion of a vassal's title. But further, such a reservation would have been ineffectual for a superior could not in granting a charter to a singular successor reserve right to demand a composition from his heir— Lockhart v. Denham and Stirling v. Ewart, supra—and, as already pointed out, Charles Drummond Moray had been entered not as heir under the old, but as heir under the new investiture.

Argued for the pursuer—The Lord Ordinary's decision was right. In the first place, the defender's argument on the result of the statute went too far. While there was no presumption that the statute had left the rights of superior and vassal in regard to casualties as they were before, at the same time the Court would be slow to accept a construction of a statute leading to results which were anomalous and contrary to principle. The construction for which the defender contended was of this kind. Under the former law, when a vassal applied for a charter to give effect to an altered destination, and thus to enlarge the original grant, the superior had it in his power to insert clauses in the charter reserving and protecting his rights. The result of the implied entry introduced in 1874 would have been to deprive the superior entirely of his rights in this respect had there been no saving clause in the Act, and the proviso contained in sub-section 2 of section 4 was introduced for the purpose of protecting the superior's rights. The Act was not intended to and did not enlarge the rights of the vassal. If Charles Drummond Moray had applied for a charter, the Crown would have protected itself by inserting all clauses necessary for that purpose. The words “existing law and practice” could only mean the charter which the superior could be compelled to grant. If that were so, the question was whether the Crown had lost its right by what took place in 1874 and subsequently, to claim composition from a succeeding heir under the investiture of 1849, and that depended upon whether the Crown then consented to admit succeeding heirs under that investiture upon payment of relief-duty only. The Crown had never given any such consent, for it was clear that the Crown officials had dealt with Charles Drummond Moray under a mistaken view of the rights of a superior—a mistaken view which was generally entertained by the profession prior to the decision in Stuart v. Hamilton. Nor could it be said that the Crown had lost its right because the receipts contained no reservation. The receipts were documents entirely personal to the person to whom they were given, and they could never be allowed to contradict or contest the terms of the title. Lastly, the claim of the Crown was not excluded by the fact that a composition might have been claimed from the defender's predecessor, for payment of a composition was essential to the enfranchisement of a charter. A charter accompanied by such payment, but nothing less, enfranchised an investiture, and indeed the enfranchisement was the result not of the charter but of the payment of composition— Lord Advocate v. Swinton, November 14, 1854, 17 D. 21; Marquess of Hastings v. Oswald, Lockhart v. Denham, and Stirling v. Ewart, supra; Duke of Hamilton v. Baillie, November 22, 1827, 6 S. 94. The defender was therefore liable for a casualty of composition, none having been paid in respect of the tailzie of 1849.

At advising—