Scottish Court of Session Decisions

On May 15, 1861, Robert Durie of Craigluscar sold to Major Aytoun the estate of Knock and South Lethans, with entry at Martinmas 1860. The disposition contained a clause in the following terms—“I,” the said Robert Durie, “bind myself to free and relieve the said James Aytoun and his foresaids of all feu-duties, casualties, and public burdens.” By the Titles to Land Act 1847 (10 and 11 Vict. cap. 48), sec. 1, it is enacted that a clause of obligation “to free and relieve of feu-duties and casualties due to the superior and of public burdens” in a disposition in the terms above set forth “shall be as valid, effectual, and operative to all intents, effects, and purposes as if they had been expressed in the fuller mode or form” generally in use at the passing of said Act. The fuller mode or form was in the following terms—“And further, I hereby oblige himself, my heirs and successors, to free and relieve the said B and his foresaids of all feu-duties, cess, minister's stipend, and other public and parochial burdens exigible furth of the said lands and others, at and preceding the term of , which is hereby declared the term of the said B's entry to the premises in virtue hereof, the said B and his foresaids being bound to free and relieve me and my foresaids of the same thereafter in all time coming.”

Until February 1894 the assessments for land tax and heritors' assessment were made upon the lands of Craigluscar and other lands, including Knock and South Lethans, on a valued rent of £742, 14s. Scots, and on that slump sum the land tax and heritors' assessment were paid by the proprietors of Craigluscar. In October 1893, however, the marriage-contract trustees of Mrs Dewar Durie, who were then proprietors of Craigluscar, took steps to have the gross valued rent separated and disjoined, and the proportions stated against each of the estates of Craigluscar and Knock and South Lethans. This was accordingly done by decree of the Sheriff dated 7th February 1894.

Page: 29↓

Thereafter Mrs Durie's trustees claimed from Roger Sinclair Aytoun, the successor of Major Aytoun in the lands of Knock and South Lethans, payment of £47, 11s. 1d., as the proportion of land tax, and £26, 5s. 4d. as the proportion of heritors' assessment, effeiring to Knock and South Lethans for the period from 1861 to 1893. They also claimed payment of interest at the modified rate of £3 per cent. per annum on the yearly payments of land tax and heritors' assessment for the periods above mentioned.

Mr Aytoun admitted liability for the land tax, and made payment of it, but he repudiated the claims for heritors' assessment and interest on land tax and heritors' assessment.

Mrs Durie's trustees thereupon raised an action against Mr Aytoun for ( primo) £26, 5s. 4d., being the amount of heritors' assessment as above stated, and ( secundo) £33, 18s. 5d., being the amount of interest at 3 per cent. on the arrears of land tax to the date of payment and arrears of heritors' assessment to the date of citation.

The defender lodged defences in which he stated—“Prior to the present year (1894) neither the name of the defender nor that of his predecessor was entered in the books of the collector of cess of the county of Fife or of the clerk to the heritors of the parish of Dunfermline, and no demand for land tax or heritors' assessment was made upon the defender or his predecessor. Neither the defender nor his predecessor was ever cited to, or was present at, any meeting of heritors by which these assessments are alleged to have been imposed, and neither of them had any voice or part in the imposition of them.”

The defender pleaded—“(3) The heritors' assessment sued for not being the debt of the defender, he is not liable for the same, nor for interest thereon, as sued for. (4) The claim for interest is not maintainable, in respect that no demand for the said land tax and heritors' assessments was ever made upon the defender or his predecessor.”

On 28th June 1894 the Lord Ordinary ( Wellwood) pronounced the following interlocutor:—“Decerns against the defender for payment to the pursuers of the sum of £26, 5s. 4d. sterling, the sum first sued for, and of the sum of £33, 18s. 5d., being the sum second sued for,” &c.

“Note.—The proprietors of Craigluscar have paid land tax and heritors’ assessment in respect of the lands of Knock and South Lethans ever since the date of the disposition of these lands by the late Robert Durie in favour of the defender's predecessor Major Aytoun. Under the disposition it is admitted that the disponee and his heirs and successors were bound to relieve the disponer, and his heirs and successors, of all ‘feu-duties, cess, minister's stipend, and other public and parochial burdens exigible furth of’ the lands disponed from the term of Major Aytoun's entry, viz., Martinmas 1860.

“The reason why the proprietors of Craigluscar have continued to pay land tax and heritors' assessment seems to be that the valued rent upon which the proprietors of Craigluscar were paying the said two taxes at the date of the disposition included the proportion of valued rent effeiring to Knock and South Lethans, and no steps were taken to have the gross valued rent divided and allocated until the beginning of the present year 1894.

“The defender admits liability for land tax, amounting to £47, 11s. 1d., and has paid the same, but he denies liability for interest on that sum.

“He, however, disputes liability for heritors' assessment, on the ground, as I understand, that he got no notice of the heritors' meetings at which the assessments were imposed, and therefore had no opportunity of objecting to the assessments.

“In my opinion, the pursuers are entitled to repayment of the amount of the heritors' assessment. From the terms of their title, the defender and his predecessor must or should have been aware that, in respect of the disposition and the clause of relief, they were liable in all the personal prestations incident to the ownership of land, including land tax and parochial assessments, and that if those burdens were paid by the disponer or his representatives, they were bound to relieve him or them of the payments so made. As to the land tax, they could be in no doubt, because that was an annual uniform imposition for imperial purposes. And even as to the heritors' assessments, they must have known that as heritors they were liable in such assessments as from year to year fell to be imposed. They were thus put on their inquiry to see how it came that they were not personally cited to the heritors' meetings. No doubt the reason why they were not cited was because the valued rent had not been split up, and their names had not been entered in the cess-books or the books of the clerk to the heritors of the parish of Dunfermline. But I am not satisfied that there was any greater duty on the proprietors of Craigluscar to have the correction made than on the disponees. Of course, until the correction was made, the proprietors of Craigluscar were exposed to the inconvenience of being called on to pay in respect of the lands disponed. But they had their right of relief.

“The question comes to be, whether, when payments are made by a person who has a right of relief, that person loses his right to repayment if he does not immediately demand repayment from the person bound to relieve him. It seems to me that the existence of a right of relief implies that the party entitled to relief may be called upon to pay, or may pay in the first instance; and accordingly, if he does so, there is no presumption that he has abandoned his claim for relief, or waived inquiry as to his liability, or paid in the discharge of a natural obligation to the true debtor. He pays, relying on his right of relief, and nothing short of the long prescription or circumstances sufficient to sustain the

Page: 30↓

defence of mora can deprive him of it.

“I have more difficulty about the claim for interest, because the proprietors of Craigluscar have unduly delayed making their claim; but as the claim for interest is now restricted to 3 per cent., I think it should be allowed.

“I shall allow no expenses.”

The defender reclaimed against the Lord Ordinary's interiocutor in so far as it decerned him to pay interest on the arrears of land tax and heritors' assessment, but quoad ultra acquiesced in the Lord Ordinary's judgment.

He argued—Until the pursuers had taken steps to apportion the land tax and the heritors' assessment among the different portions of the estate, these burdens were exigible not from the particular parts but from the estate as a whole. The pursuers had no claim of relief against the defenders until they had got the proportions fixed. Until that was done the debt was the pursuer's. He had a claim against the defender, but the latter was entitled to consider himself free until the claim was made upon him. There was here no enjoyment of money which ought to have been paid; the sum due in this case could not be paid until it was ascertained and demanded. The authorities all pointed to this, that interest was only given on a clause of relief from the time interest was demanded— Hope v. Lumsden, June 22, 1871, 9 Macph. 865; Dunbar's Trustees v. British Fisheries Society, December 19, 1877, 5 R. 350; Maxwell's Trustees v. Bothwell School Board, July 14, 1893, 20 R. 958; Glasgow Gaslight Company v. Barony Parish of Glasgow, February, 15, 1868, 6 Macph. 406.

Argued for pursuers—The Lord Ordinary's judgment was right. By implied agreement interest was due in all cases of the use of money where it had been overpaid, and a claim of repetition arose — Bell's Prin. sec. 32. By implied contract interest was due here, as the defender had full enjoyment of the fruits and profits of the lands without payment of the assessments exigible from them—Bell's Comm. (7th ed.) i. 693. He was lucratus in receiving the rents, and must pay the burdens and interest in the arrears— Durie v. Ramsay, Feb. 17, 1624, M. 542; Cluny v. Ogilvie, July 20, 1626, M. 543; Home v. Renton, February 7, 1628, M. 545; Peters v. Magistrates of Greenock, June 9, 1894, 31 S.L.R. 723. On the face of his title the defender was bound to have known that he was liable for these burdens. The pursuers wished to make no profit; they only wanted to be put to no loss; they had been paying taxes which ought to have been paid by the defender, and were entitled to full relief against him for any loss they had incurred. It was as much the business of the defender as that of the pursuer to take steps to get the land tax and heritors' assessment apportioned, and he was not entitled to profit by his having neglected to do so.

At advising—