Scottish Court of Session Decisions

By contract of ground annual dated 11th and recorded 15th November 1875, Andrew Crawford, with consent of John Somerville, for his own right and interest, assigned and disponed in favour of Mathew Gemmell and his heirs and assignees whomsoever, heritably and irredeemably, two steadings of ground in Hutcheson town, Glasgow. The subjects were disponed under, inter alia, the real lien and burden of a yearly ground-annual or ground rent of £35, payable half-yearly, together with a duplication thereof every nineteenth year to be paid to and taken and uplifted by the said John Somerville and his heirs or assignees or disponees whomsoever, furth of and from the subjects disponed, and the buildings to be erected thereon, and readiest rents, maills, and duties of the same. By the contract Mathew Gemmell bound and obliged himself and his successors in the said subjects to pay to John Somerville and his foresaids the yearly ground-annual and duplication thereof, and disponed to John Somerville and his foresaids, not only the ground-annual and the duplication foresaid, but also the subjects themselves and the buildings to be erected thereon, in security of payment of the ground-annual. The contract also contained an assignation of the rents in favour of John Somerville.

By disposition dated 24th October and recorded 9th November 1876 Mathew Gemmell disponed the two steadings of ground to Alexander Johnston under burden of the ground-annual.

The ground-annual was not paid from Whitsunday 1881 to Martinmas 1897, and in April 1898 John Somerville raised, in the Sheriff Court at Glasgow, an action of maills and duties against Alexander Johnston and the tenants of the subjects for payment of (1) £612, 10s., being the arrears due; (2) £236, 5s., being interest on the arrears; (3) the yearly ground-annual of £35 and duplication thereof thereafter to become due.

Alexander Johnston defended and pleaded—(1) The action is irrelevant and incompetent.

On 27th July 1898 the Sheriff-Substitute ( Balfour) repelled the defences and decerned in the maills and duties as craved in the petition.

“ Note.—… With reference to the first

Page: 538↓

plea, the defender maintains that the holder of a ground-annual cannot raise an action of maills and duties, and reference was made to the cases of The Prudential Assurance Company v. Cheyne, 11 R. 871, and Nelson's Trustees v. Todd, 23 R. 1000. By these cases it was decided that neither a superior nor the creditor in a bond and disposition in security of a superiority can pursue an action of maills and duties for recovery of feu-duty. The ground of the judgments is that a superior is not owner of the feu, and has no title on which he can oust the vassal and enter into possession, but he may poind the ground, which one in possession cannot do. The holder of a ground-annual, however, is in a different position, and he can raise an action of maills and duties and enter into possession in the same way that the creditor in an annuity secured by bond of annuity and disposition in security can. This is distinctly laid down in Bell's Lectures on Conveyancing, pages 1147–8, and the same proposition is stated in the last edition of Bell's Principles, section 887a.” …

The defender appealed to the Sheriff ( Berry), who on 24th November 1898 adhered.

“ Note,—The pursuer of this action is the holder of a ground-annual under a contract which contains, as is usual, in security of its payment, a conveyance of the subjects and an assignation to the rents in his favour. The question is raised whether he has the remedy of an action of maills and duties for its recovery. I am not aware of any decision bearing directly on the point, but I think that the principle recognised in more than one case, as governing the right to bring such an action, applies to the case of the holder of a ground-annual who stands in right of a disposition to the land and an assignation to the rents. He is in a different position from the superior of the property, who, as having no right to enter into possession, cannot sue in an action of maills and duties. That a superior is excluded from this remedy was decided in the Prudential Assurance Company v. Cheyne, 11 R. 871. The ground of his exclusion is well stated in the judgment of Lord Rutherfurd Clark in that case. He states that the superior by the very terms of his grant guarantees to his vassal the right to possess the feu. To dispossess the vassal from his position would be a violation of the feu-charter. No such difficulty lies in the way of the holder of a ground-annual, who stands in the right of an assignation to the rents. I think that a disposition to the lands, coupled with an assignation to the rents, places the pursuer in the same position as a heritable creditor in regard to the remedy of an action of maills and duties.”

The defender appealed, and argued—The holder of a ground-annual was not a heritably secured creditor. There was no precedent for a holder of a ground-annual suing an action of maills and duties. There was no instance of such in the books of style.

Counsel for the pursuer were not called on.