Scottish Court of Session Decisions

The history of the tenure is given by Craig, who points out that grants in free blench were originally given as rewards for military services, but that in his time, when commercial ideas had already begun to encroach upon the rigidity of the feudal system, landowners in want of money found it convenient to sell for a more considerable price to be immediately paid down rather than for an annual payment of a feu-duty. He accordingly proceeds to point out that it is hardly a proper feudal holding, because it is the characteristic of feu holding that the vassal shall render services or prestations to the superior, whereas the vassal in blench holding is free from all such obligations and is required to do nothing more than to acknowledge the superiority. There is therefore no presumption in the case of a blench holding that a taxation of entries cannot be intended to cover the composition exigible on the entry of a singular successor because of the improbability of the superior surrendering claims that are common to all feu-contracts; the presumption is rather the other way. But the question is not one of principle, but what is the fair construction of the present instrument.

The deed begins by narrating the payment of the sum of £9000 as the price of the land, and then the land is disponed to “George Ritchie, his heirs, successors, and disponees.” It is conceded, and the concession could not be withheld, that this is a grant in favour of the original disponee, his heirs, successors, and disponees, and accordingly the grant thus begins by recognising the position of persons who may hold by a singular title. Then the deed goes on to oblige the superior to grant ineftment to “the said George Ritchie and his foresaids;’ and again it is conceded that by the expression “foresaids” it is meant that the superior must give infeftment to George Ritchie, his heirs and successors, including such as may hold by singular title. The tenendas clause bears that the superior is to infeft “the said George Ritchie and his foresaids upon their own proper charges and expenses, to be holden by the said George Ritchie and his foresaids in free blench farm for yearly payment of one penny Scots money on the ground of the said lands.” Here again “foresaids” includes singular successors.” And then the clause goes on, “in lieu of the entry of heirs and successors and other casualties of superiority.” It appears to me to be plain, on the ordinary principles of construction, that “successors” in this last part necessarily embraces all the persons who are included in the term “foresaids” in the first part, and that the payment is to be made in lieu of the entry of heirs or singular successors. I can see no reason for confining it to heritable succession. It is said that there is a departure from the form of language followed before, because instead of “George Ritchie and his foresaids” there is the new phrase “heirs and successors,” and that therefore there is room for a different construction of successors in the two cases. But the alteration in the phraseology is only the necessary and grammatical consequence of what the granter is doing at this stage, because he is not speaking of the particular vassal but of the liability attaching to vassals generally, and he says in substance, “I relieve George Ritchie and his foresaids—that is, his heirs and his singular successors—of the liabilities generally attaching to these two classes of successors respectively.” There is nothing in this alteration to throw any doubt on the plain meaning of the deed. But apart from that we must read on to the end of the sentence and see what is meant by “other casualties of superiority.” I see no reason to doubt that the expression is wide enough to cover composition. I quite assent to the proposition that composition is not strictly a feudal casualty, because it is not a right arising from the tenure, and founded either in the feudal constitutions or in the special stipulations contained in the charter by which the fee is constituted, but is really the price paid by a purchaser for the privilege of entry which the superior has not undertaken to give by the terms of his original grant. But notwithstanding that distinction the claim is of the same nature as a casualty, since it is a claim arising from custom and occurring at uncertain intervals, and it is certainly a money claim to which the superior looks as part of his return from the feu. It is therefore not to be wondered at that it came to be called a casualty in the ordinary language of conveyancers, and the only real question as to the force of the term is, whether at the date of the deed in question it had obtained that meaning. I think Mr Sandeman's answer on that point is conclusive when he shows that Mr Walter Ross had already called it so in his Lectures, which were delivered twenty-five years before the date of the deed, and there is nothing singular in finding that conveyancers of the generation trained by Mr Ross use the term in the sense in which it was used by him.

I have therefore little difficulty in holding that the plain meaning of the charter is that the lands are conveyed for payment of a sum down in full of all claims, and the only remaining payment to the superior is of one penny Scots if he asks for it. Accordingly I think we should answer the first question in the affirmative and the second in the negative.

The Lord President and Lord M'Laren concurred.

Lord Adam was absent.

The Court answered the first question in the affirmative and the second in the negative.

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