Scottish Court of Session Decisions

This was an action at the instance of the trustees of the late Miss Helen Leslie and Miss Jane Leslie of Powis House, Aberdeen, against the Magistrates of Aberdeen, concluding for declarator that on payment to the defenders of the sum of £113, the pursuers, as proprietors of “All and haill that piece of muir ground adjacent to the lands of Calsayseat, feued off by Alexander Frazer …” were “entitled to be discharged of all liability for casualties exigible

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by the defenders in respect thereof in all time coming.” The pursuers were also proprietors infeft under the defenders as superiors of the lands of Calsayseat referred to in the summons, the two subjects having been feued out to their predecessors by the Magistrates of Aberdeen in 1730.

The defenders pleaded—“(4) The pursuers not having offered to redeem the casualties incident to the feu, or estate of property, held by them, and exigible by defenders, the defenders are entitled to absolvitor from the petition as laid.”

The averments of the parties and the terms of the charter of 1730 upon which they founded their contentions were set out by the Lord Ordinary as follows:— “The pursuers are proprietors, infeft under the defenders as superiors, of two pieces of ground near Aberdeen. These are distinguished in the titles as— first, the lands of Calsayseat or Calsie-end; and second, a piece of muir ground adjacent. The entry is untaxed.

The pursuers seek in this action to exercise the right to redeem future casualties payable in respect of the muir ground, in terms of the Conveyancing Act of 1874. The defenders reply that they must redeem the casualties of the whole feu, if at all, and that the feu includes Calsayseat. The interest of the parties in the question lies in this, that Calsayseat is already built on, while the muir ground is not.

The two subjects are ‘adjacent,’ as the titles bear. Whether they are contiguous is not so clear, for the point of contact is the apex of the two angles. But the plan which was exhibited seems to show that they have at all events the breadth of a road as a common boundary; and I was requested to decide the case on the footing that the subjects were contiguous, as indeed they are described in the Act of Council of 8th August 1730, where the ground is referred to as ‘that piece of muir ground contigue to the lands of Calsie-end,’ the latter being apparently another name for Calsayseat.

They were not feued out originally at the same time. Calsayseat was feued out prior to 1727 for a feu-duty of £6 Scots. In that year Alexander Fraser agreed to feu the adjacent piece of muir ground at £8 Scots; and being desirous to transfer both to his son, he and his son petitioned the Town Council, as superiors, desiring that the purchase of 1727 should be transferred to the son, and that the muir ground should be declared part and pertinent of Calsie-end. The Council on 8th August 1730 passed an Act of Council by which they transferred the previous Act of Council (of 29th November 1727) in favour of the son, and ‘declared and hereby declares the said piece of muir ground to be part and pertinent of the said lands of Calsie-end, and annexes the same thereto, and appoints one charter to be expede thereupon, the said Mr Alexander Fraser younger being always lyable in payment of the haill casualtys and feu-duties that were formerly payable for the said piece of muir ground.’

The charter was granted on 14th August 1730, and it forms the foundation of the pursuers' title. It describes the two pieces of ground separately; but the description of the muir ground begins thus—‘As also All and haill that piece of muir ground adjacent to the said lands of Calsayseat, lately feued off by the said Mr Alexander Fraser elder, annexed to the said lands of Calsayseat, and declared to be part and pertinent thereof, lying,’ &c. There is included in the charter a half net of salmon fishing upon the Don. The grant is made under the conditions and others contained in the old rights and infeftments, and in the records and Acts of Council of the burgh, ‘which we hereby declare to be of as great strength and force as if they were expressly insert in this present charter.’ The two Acts of Council passed in 1727 and 1730 relative to the muir ground are fully recited. The tenendas clause opens thus—

‘To be holden and be held, the said lands of Causyseat, with the houses, biggings, parts, and pertinents thereof, with the said piece of muir ground now annexed thereto, and declared part and pertinent thereof, &c.’ The reddendo clause is expressed on the same lines” [the terms of it were “Giving and rendering … for the said lands of Calsieseat and pertinents thereof, and the said piece of muir ground now annexed thereto as part and pertinent thereof, the sum of Fourteen pound Scots money”] “but the reddendo of ‘the sum of £14 Scots money’ is followed by this parenthesis— ‘viz., £6 for the said lands of Causyseat, and £8 for the said piece of muir annexed thereto.’ Then follows the provision for the entry of heirs, thus—‘doubling the said feu-duty at the entry of every heir to the said lands, with the pertinents.’ There is an entirely separate reddendo for the half net salmon fishing. The precept of sasine desires infeftment to be given in ‘All and haill the said portion of land above mentioned of the commonty of the said burgh of Aberdeen, called Causyseat, and that piece of muir ground now annexed thereto, above mentioned, with the houses, biggings, yards, and pertinents thereof.’

The Lord Ordinary ( Pearson) on 14th December 1897 pronounced an interlocutor sustaining the defender's fourth plea, and assoilzieing them from the conclusions of the action.

Opinion.—[After narrating the circumstances of the case as above set out, his Lordship proceeded]—“In my opinion, this presents a clear case of a union of holdings, admitting of sasine being taken on any part of the lands, and uniting the two subjects into one tenement. Possibly the subordination of the muir ground to the other subject, implied in the description of it as part and pertinent of Calsayseat, would of itself have been sufficient to unite the two holdings, without words of union or annexation. But words of annexation are used, and although the clause is not the ordinary full clause of style, that is obviously because the intention to annex is already sufficiently manifested by the Act of Council, on which, so far as the immediate

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parties were concerned, the annexation depended. The intention to unify the holdings is clear, and, in my opinion, the words are quite sufficient. From that date they are no longer separate tenements. Doubts have indeed been expressed as to whether a clause of union is effectual, unless it either occurs in a Crown title or relates to lands which are part of a larger subject already united and annexed by authority of the Crown. But the weight of authority seems to acknowledge the right of a subject-superior to unite tenements, though he cannot create baronies. This question was, however, not argued before me, it being assumed that the Town Council could effectually unite the holdings if so minded.

It was suggested that the surrounding circumstances furnish a sufficient explanation of the clause of annexation, apart altogether from feudal requirements. It is pointed out that the destination in the charter is to Alexander Fraser, ‘burgess of our burgh, his heirs-male and assigneys, being burgesses, brethren of gild, and actual indwellers within the said burgh, using and frequenting the trade and interchange of merchandise within the same, and to none others.’ Further on there is a declaration that ‘it shall not be in the power of the said Mr Alexander Fraser younger, or his aforesaids, to enjoy for future two lands or two fishings, or one whole nett of salmon fishing holden of us at one and the same time.’ The suggestion is, that the whole matter was regarded from the guild's standpoint, and that as both guild and burgh were interested in the dues paid by each new burgess, it was to their advantage that the members should not suffer diminution by uniting separate holdings. Hence the necessity for the vassal petitioning the Town Council for the annexation of two holdings, this being granted by the town as a favour, which the vassal could at any time renounce. I can only say that this suggestion, plausible though it be, does not seem to me an adequate explanation of the language used in the charter.

Now, I understand that the possession and the title have ever since been in conformity with the charter. There has been no severance of the holding. The pursuers are infeft in the whole, and the charter of 1730 is the foundation of their title.

The pursuers, however, maintain that even on this assumption they are entitled to redeem the casualties of a part of the holding, on the principle recognised in the case of the Edinburgh Roperie Company ( 1877, 4 R. 1032; 6 R., H.L. 1). That was a very different case. The Leith Roperie Trustees had obtained a writ of confirmation from the superiors in 1862 of the entire original feu, excepting some pieces which had been previously sold. In 1867 they conveyed a small part to the Police Commissioners, who however, did not take infeftment, so that in a question with the superior the Roperie Trustees remained undivested proprietors of that part. Then in 1876 the Roperie Trustees conveyed the remainder to the pursuers, who took infeftment, and were thus impliedly entered with the superiors. The pursuers maintained successfully that they were entitled to redeem the future casaulties effeiring to their own portion of the feu, without offering to redeem the future casaulties of the whole feu. But then they were not proprietors of the whole feu, nor infeft in the whole feu, as the pursuers in the present case are. It is not decided by the case of the Edinburgh Roperie Company, and it is not the law, that one who is infeft in a single holding can select a part of that holding, and claim to redeem the casaulties of the selected portion under section 15. Various devices were suggested in the argument whereby the end might be obtained in a circuitous way, as by disponing part to an interposed person who takes infeftment. I express no opinion as to whether such devices would be successful. But it is not so clear that they would succeed as to lend any weight to the argument that what can be done circuitously may be done directly.”

The pursuers reclaimed, and argued— There were two clauses of reddendo, and accordingly they were entitled to separate the two parts of the feu, and call for the redemption of the casualties effeiring to one of the parts. The annexation had only been granted as a favour, and the vassal could renounce it at any time. There was in fact only an indication of an intention to carry out an annexation, an intention which had never been properly carried out. If it had been, either the muir ground, after being identified, would have been conveyed as a part and pertinent only, or there would have been a new description of the lands by their boundaries. But in point of fact the subjects, in titles subsequent to the 1730 charter, continued to be described separately with their own boundaries, thus excluding the idea that the muir ground was a pertinent. The superiors might have sold the superiority of this part, although the two parts were combined under one charter, and accordingly, vice versa, the reclaimers were entitled to redeem the casualties effeiring thereto, since the purchaser of such part would have been clearly entitled to redeem— Lamont v. Duke of Argyll, June 23, 1813, F.C., Feb. 8, 1819, 6 Paton's App. 410; Magistrates of Edinburgh v. Edinburgh Roperie Company, November 12, 1878, 6 R. (H. of L.) 1. It was laid down in Menzies' Conveyancing (2nd ed.), 638, that even though the two portions were included in one charter, yet if they were described separately and had distinct clauses of reddendo the superior could dispose of them separately. It was possible here to obtain a separate description and a separate feu-duty, so that the schedules of the 1874 Act would be complied with. Moreover, it was possible for the reclaimers to attain their object in a circuitous method, such as by disponing this part to an interposed person, who would take infeftment and claim to redeem. Why not therefore grant it directly?

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Argued for respondents—The real question was whether the charter created two separate estates, or one undivided estate, which had always been treated as such. That the Lord Ordinary's view was the correct one was clearly demonstrated. The muir ground had never been a separate holding at all. There was a personal right to demand a feudal title, but only under the 1730 charter did it become a feu. In the case of Lamont v. The Duke of Argyll was seen the minimum in a charter which would serve to keep the estates separate, and the reclaimers' title did not come up to that. There was a well-known style for the allocation of feu-duty, and the videlicet clause did not effect such an allocation, being merely a narrative as to how the sum was made up. Conjecture as to the motives for including the subjects in one charter was of no importance for the present question.