Scottish Court of Session Decisions

This was an action of declarator and for payment of a casualty at the instance of James Sinclair Sutherland, immediate lawful superior of the lands of Lochend, in the county of Caithness, against George Tait Anderson, William Sutherland Anderson, and David Keith Murray, all residing in Thurso, as trustees acting under the trust-disposition and settlement and relative codicil granted in their favour by John Tait, Esquire of Lochend, residing at Shrubbery Bank, Thurso, dated said trust-disposition and settlement 16th, and relative codicil 17th, both days of May 1899, and both registered in the Books of Council and Session at Edinburgh on the 15th day of June 1899, proprietors of the said lands of Lochend, concluding for payment of a casualty of composition amounting to £434, being one year's rent of the said lands of Lochend. These lands were held in free blench farm for payment of an annual duty of 1d. Scots, if asked allenarly. The entry of singular successors was untaxed.

The following narrative of the facts in the case is taken from the opinion of the Lord Ordinary ( Kyllachy)—“In this case the facts are a little complicated, but the substance of the position seems to be this—The lands of Lochend, now belonging to the defenders, were at his death in 1855 the property of the late Mr W. J. Sinclair of Freswick. By his trust-disposition and settlement Mr Sinclair disponed the lands to trustees for the purpose (after the payment of debts, &c.) of being conveyed to his heirs-at-law, viz., Miss Sinclair, his sister, and Mr Ferryman, the son of a deceased sister, equally between them. The trustees took infeftment and applied for and obtained an entry from the superior by Charter of Adjudication in Implement and Confirmation; and on that entry they paid a composition. In 1871 they denuded of the trust and conveyed the lands to Mr Ferryman and to the testamentary trustees of Miss Sinclair, who had by that time died. Miss Sinclair's trustees held her estate, subject to certain trust purposes, for Mr Ferryman, who was Miss Sinclair's heir-at-law; and in 1877 they conveyed to him her half of the lands in question. Mr Ferryman was thereupon vested in the whole lands; and it may be taken that he was impliedly entered with the superior,

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as regards his original half, on the passing of the Conveyancing Act of 1874, and, as regards Miss Sinclair's half, in 1877, when he recorded the disposition from Miss Sinclair's trustees. He did not, however, pay any casualty to the superior; and, so standing his title, he sold in 1899 to the present defenders, who upon his conveyance were in that year infeft, and became impliedly entered with the superior.”

Mr James Mill, the last survivor of the trustees of Mr W. J. Sinclair of Freswick, who were entered by the superior's charter in 1856, died in 1873.

The pursuer pleaded, inter alia—“(2) The defenders as singular successors infeft in the lands of Lochend described in the summons, are, in consequence of the death of the said James Mill, and of no casualty having been paid therefor since his death, and of their implied entry under the 4th section of the Conveyancing (Scotland) Act 1874, liable to the pursuer as superior of the lands of Lochend in payment of composition.”

The defenders pleaded—“(1) The statements of the pursuer are irrelevant and insufficient to support the conclusions of the summons. (2) The defenders not being due the composition demanded by the pursuer are entitled to absolvitor. (3) The defenders being in any event not liable except in relief-duty, should be assoilzied. (4) In respect of the provisions of the Act (50 and 51 Vict. cap. 69), sec. 1, the defenders are entitled to absolvitor, and, separatim, are not in any event liable for more than composition in respect of the one-half of the subjects which formerly belonged to Miss Janet Sinclair Trail Sinclair.”

The Conveyancing (Scotland) Act 1874 enacts 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.” …

Sub-section 3—“Such implied entry shall not prejudice or affect the right or title of any superior to any casualties, feu-duties, or arrears of feu-duties which may be due or exigible in respect of the lands at or prior to the date of such entry;”… “but provided always that such implied entry shall not entitle any superior to demand any casualty sooner than he could by the law prior to this Act or by the conditions of the feu right have required the vassal to enter or to pay such casualty irrespective of his entering.”

The Conveyancing (Scotland) Acts (1874 and 1879) A mendment Act 1887 enacts:—Section 1—“When by a trust-disposition and settlement, or other mortis causa writing, any heritable estate is conveyed to trustees for behoof of or with directions to convey the same to the heir of the testator, whether forthwith or after the expiration of any period of time not exceeding twenty-five years, or by virtue of which the heir of the testator has the ultimate beneficial interest in such estate, the trustees under such trust disposition and settlement or other mortis causa writing shall not, upon their entering, or by reason of their having prior to the date of this Act entered with the superior, by infeftment or otherwise, be liable for any other or different casualty than would have been payable by the heir if he had taken the estate by succession to the testator without the same having been conveyed to trustees, and the heir upon thereafter entering with the superior, by infeftment or otherwise, shall not be liable for any further casualty in respect of his entry, but whether the heir shall have been entered or not another casualty shall become exigible upon his death in the same manner as if he had been duly entered with the superior.”

On 30th, December 1901 the Lord Ordinary pronounced this interlocutor:—“The Lord Ordinary, having considered the cause, finds that the pursuer is entitled to a casualty of a year's rent of the lands mentioned in the summons, estimated at the date of the defenders' implied entry on 9th October 1899: With this finding, appoints the cause to be enrolled for further procedure, and grants leave to reclaim.”

Note—[ after stating the facts, ut supra]—“The superior now demands from the defenders a casualty of a year's rent on the ground that the lands have (apart from implied entries under the statute) been in non-entry since the death of the last survivor of the trustees who took an entry in 1856; and that the defenders being now entered, and being strangers to the former investiture, are liable for a composition.

“The defence, as I understand it, is (1) that as the law stood prior to the Conveyancing Amendment Act of 1887, the defenders' author, Mr Ferryman, was, as heir under the old investiture (that is to say, the investiture under which Mr Sinclair of Freswick held at his death in 1855) entitled to an entry on payment of relief, and that they as his disponees are only liable in the casualty for which he was liable; (2) that assuming the contrary, the Act of 1887 had the effect of putting Mr Ferryman in the same position as if, on his implied entries in 1874 and 1877, he had paid a casualty of relief, and had so excluded the superior's claim for another casualty until his (Mr Ferryman's) death.

There was a full and able argument in the Procedure Roll, including a full citation of authorities relating (1) to the effect on the superior's right to casualty of conveyances to trustees for behoof of the heir of the investiture; (2) to the defenders' right to claim the benefit of their author's rights as against the superior; and (3) to the principles applicable in considering the retrospectiveness or non-retrospectiveness of statutes like the statute of 1887—

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Stuart v. Jackson, 17 R. 85; Duke of Atholl v. Stewart, 17 R. 724; Duke of Atholl v. Menzies, 17 R. 738; Rossmore's Trustees, 5 R. 202; Lamont v. Rankine, 6 R. 739.

I have come to the conclusion that the pursuer is entitled to have from the defenders a casualty of composition in respect of their (the defenders') implied entry in 1890, and chat the year's rent falls to be taken when their implied entry took place and the casualty due under it became payable.

I assume in the defenders' favour that until 1899 there was no change in the old investiture; that the trusts referred to were mere burdens on the rights of the heirs-at-law; and that by consequence Mr Ferryman might have ignored the trust conveyances and made up his title by service—obtaining in 1871 an entry to his original half of the subjects on payment of relief-duty, and paying afterwards in 1877 a similar relief-duty in respect of his implied entry in Miss Sinclair's half. I assume that this would have been his right at common law, and apart altogether from the Amendment Act of 1887. And that being so I assume, by consequence, that if he (Mr Ferryman) had thus obtained an entry or entries, express or implied, and paid therefor relief—duty as was appropriate, the superior could have had no claim against him or against his disponee until his death. That I think would probably have been the result at common law—that is to say, at common law and under the Act of 1874. At all events I am prepared so to assume.

But I fail to see how, at least as the law stood before 1887, all this could help the defenders. Mr Ferryman did not obtain any express entry as heir or otherwise, nor did he pay any casualty in respect of his implied entries. Accordingly when he displaced the old investiture and created a new investiture by his disposition to the defenders and by their infeftment and implied entry in 1899, there ceased to be thenceforward any vassal in existence who had paid a casualty, and during whose live therefore no further casualty was payable. In other words, the defenders being liable sooner or later for composition in respect of their entry under the new investiture, there is nothing to postpone their liability to pay that composition; such postponement being only pleadable when there is a previous vassal alive who has either been expressly' entered or being impliedly entered has paid a casualty— Stuart v. Hamilton, 16 R. 1070. All this seems quite clear. And if it is suggested that Mr Ferryman can still demand an entry as heir under the old investiture, and give the defenders the benefit of that entry, I am afraid it is also clear that that is exactly what has been held to be impossible in the series of decisions beginning with Rossmore's Trustees and ending with Lamont ( 7 R. (H.L.) 90). The old investiture is displaced by the defenders' entry, and no title can now be made up upon it.

The defenders' case, therefore, if they have a case, must rest upon the Act of 1887, which provides, stated shortly, that where an estate is conveyed mortis causa to trustees for behoof of the testators heir, the trustees shall not upon their entering, or by reason of their having prior to the Act entered with the superior, be liable for any other or different casualty than would have been payable by the heir if he had taken the estate by succession: ‘and the heir upon thereafter entering with the superior, by infeftment or otherwise, shall not be liable for any further casualty in respect of his entry, but whether the heir shall have been entered or not, another casualty shall become exigible upon his death in the same manner as if he had been duly entered with the superior.’

The question is, whether in virtue of this enactment of 1887 the payment of a casualty (of composition) by the trustees of W. J. Sinclair in 1856 put Mr Ferryman in the position of requiring to pay no further casualty during his life, and puts the defenders iu the position of having to pay no further casualty until his (Mr Ferryman's) death.

I have given the defenders' argument on this point full consideration, but I have not been able to entertain it. The Act of 1887 may be retrospective to the extent of making it immaterial whether the entry for which the trustees are supposed to be still ‘liable’ is an entry before or after the passing of the Act. But I can discover nothing to make the Act retrospective in any other sense or to any other effect. On the contrary, it appears to me that the hypothesis of the Act plainly is that the trustees to whom it applies are persons who at its date are, or may subsequently become, liable for the casualty. And that being so, two things, in my opinion, follow—(1) that the enactment cannot apply to trustees who, having ceased to be owners, and being only past owners, cannot be ‘liable’ in any casualty, and (2) that similarly it cannot apply to a casualty which at the date of the Act has been paid, and for which, therefore, ‘liability’ is impossible.

On the whole matter, therefore, I think the pursuer is entitled to have it found that he is entitled to a casualty of a year's rent, estimated at the date of the defenders' implied entry on 9ch October 1899. As to the precise terms of the decree, and as to the ascertainment of the amount, the case will have to be enrolled for further procedure.”

The defenders reclaimed, and argued—It was clear that had Mr Ferryman paid the relief-duty of 2d. before disponing to the defenders no composition could have been demanded during Mr Ferryman's lifetime. The case made by the pursuer was that because Mr Ferryman had failed to pay 2d., which had never been demanded, therefore the defenders must pay a year's rent of the subjects long before they would otherwise have been compelled to do so. So inequitable a result should not be sustained unless it was clearly the result of the provisions of the Conveyancing Act 1874. It was not necessary to arrive at that conclusion. A casualty of relief in a blench

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holding was merely a duplicand of the blench-duty, not a separate and independent prestation due by the vassal—Ersk. ii. v. 49; Bell's Prin., p. 716. But the blench-duty here, as in other blenchholdings, was only payable conditionally. The condition was that it should be asked si petatur tantum. It had long been settled that the meaning of that condition was that the blench-duty was only payable if it was asked within a year from the date when it became due—Ersk. ii. iv. 7; Bell's Prin., p. 692. But when you had to pay a duplicand of a conditional payment the payment of the duplicand was due under the same condition. Therefore, as Mr Ferryman had not been asked for payment of relief-duty within a year after it hecame due it was then no longer exigible, and, not being exigible, must be held to have been paid. If so, no further casualty could be demanded during his life. (2) Even assuming that the defenders would be liable under the law prior to the Conveyancing Amendment Act 1887, the case fell within the provisions of section 1 of that Act (quoted supra), because Mr Ferryman was the heir for whom the trustees held when they took entry in 1856. That section provides that in these circumstances no further casualty is due until the death of the heir, if the trustees on entry paid a casualty. It must be presumed that they did so, as the superior granted them a charter. The Act of 1887 was retrospective to the extent of applying to a case where the trustees were entered before it came into operation. The statement in the rubric in Stuart v. Jackson, November 1, 1889, 17 R. 85, to the effect that the Act was not retrospective, was not correct.

Argued for the respondent—The defenders were singular successors, and must show why they should not like other singular successors be liable for a composition. Apart from the Act of 1887, the argument was that a relief-duty was only exigible if asked for within a year. But a relief-duty, though estimated as a duplicand of the blench-duty, was entirely different, and the character and conditions as to payment of the blench-duty were not applicable to it. It was exigible at any time. (2) Even if the circumstances of the present case fell within the scope of section 1 of the Conveyancing Amendment Act 1887, that Act was not retrospective and did not apply to the case of trustees who were entered prior to the Act of 1874— Corporation of Edinburgh v. Irvine's Trustee, July 1, 1902, 39 S.L.R. 737; Stuart v. Jackson, cit. supra. The 1887 Act was meant to meet the hardship which might result if the trustees were impliedly entered under the Act of 1874. In case of entry before that Act the result of entry depended on common law.

At advising—