Scottish Court of Session Decisions

In March 1902 an action was raised by Eliza Lady Alexander and others, the trustees of the late Major-General Sir Claud Alexander, Bart. of Ballochmyle, in the county of Ayr, as superiors of certain lands in that county, against Sir John Muir, Bart. of Deanston House, Perthshire, as their vassal, and James Finlay & Company, merchants, Glasgow, as his tenants in a portion of the lands, for payment of two sums of £248, 18s. 2d. alleged to have been underpaid to the superiors at Whitsunday 1862 and Whitsunday 1881 by the vassals in these years respectively for the lands in question, and for poinding.

Sir John Muir held the lands in question under a feu-disposition granted in 1807 by Claud Alexander Esquire of Ballochmyle, the then superior of the lands, with entry as at Whitsunday 1805.

By the feu-disposition the vassal was taken bound to pay an annual feu-duty of £248, 18s. 2d. money feu—“As also to pay to me, the said Claud Alexander and my foresaids, at the term of Whitsunday 1824 the sum of £497, 16s. 4d. sterling, being the double of the said yearly feu-duty which will then be due for the said whole subjects, and also to pay to me, the said Claud Alexander and my foresaids, every nineteenth year (counting from the said term of Whitsunday 1824) the said sum of £497, 16s. 4d. sterling, being the double of the said yearly feu-duty which will then be due for the whole subjects above mentioned, and so forth, doubling the said yearly feuduty every nineteenth year, counting from Whitsunday 1824, but that only for each nineteenth year as the same comes round.”

The feu-disposition further contained a clause binding the superior to enter as vassals the heirs, disponees, or singular successors of the vassal without demanding or being entitled to exact any composition whatever “in regard that the foresaid feu-duty, together with the double thereof every nineteenth year, … are the agreed and fixed consideration hereby accepted of in lieu of all compositions for the entries of heirs, disponees, and singular successors in the foresaid lands and others.”

The defender Sir John Muir became vassal in the lands in question in 1884, conform to disposition and assignation in his favour by the then vassal.

At the terms of Whitsunday 1862 and 1881 a sum of £497, 16s. 4d., inclusive of the feu-duty of the year, was paid by the vassals in those years respectively.

At the term of Whitsunday 1900 a sum of £497, 16s. 4d. was paid by the defenders to the pursuers over and above the feuduty of that year.

The sums sued fur were alleged by the pursuers to be due for the years 1862 and 1881 as debita fundi.

The following receipts were produced by the defenders for the payments made at Whitsunday 1881 and Whitsunday 1900, viz:—

“ Ballochmyle, 15th May 1881.

Messrs James Finlay & Coy. to Colonel Alexander.

To money feu	£306	18	9 1 2
44 pecks teind meal at 15s. 7d.	2	2	10
Burdens	9	13	1 1 2
Double feu	248	18	2
	£567	12	11
Off In. Tax	14	3	9
By cash, John Wallace	£553	9	2

£553, 9s. 2d. (Stamp Id.) 27th May 1881.

Edinburgh, 15 th November 1900. Ballochmyle Trust.

Received by us, agents for the trustees of the late Major-General Sir Claud Alexander of Ballochmyle, Baronet, superiors of the subjects aftermentioned, from Messrs James Finlay & Co., by the hands of Messrs M'Grigor, Donald, & Co., Writers, Glasgow, the sum of Four hundred and ninety-seven pounds sixteen shillings and fourpence, in payment of casualty due at Whitsunday 1900 in respect of the subjects described in the feu-disposition granted by Claud Alexander Esq. of Ballochmyle, in favour of Kirkman Finlay and others, dated 11th April 1807.

A. & A. Campbell.

“£497, 16s. 4d. stg. (Id. stamp.)”

The pursuers pleaded—“(1) The sum sued for being justly due and resting owing to the pursuers, as superiors of the lands and others described in the summons, and being debita fundi, the pursuers are entitled to decree of poinding and for payment as craved.”

The defenders pleaded—“(1) The sums sued for not being justly due and resting owing under the said feu-disposition to the pursuers as superiors of the lands and others described in the summons, and not being debita fundi, the defenders are entitled to be assoilzied with expenses from both the conclusions of the summons. (2) The sums sued for not being justly due and resting owing to the pursuers as superiors of the lands and others described in the summons, in virtue of the superiors

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having accepted payment from the vassals of certain sums of money in full discharge of all feu-duty and compositions due at the terms of Whitsunday 1862 and Whitsunday 1881, the defenders are entitled to be assoilzied with expenses from both conclusions of the summons. (3) The action is barred by mora, taciturnity, and acquiescence.”

On 21st June 1902 the Lord Ordinary ( Stormonth Darling) decerned against the defenders in terms of the conclusions of the summons.

Opinion.—“The purpose of this action is to enforce payment by the superiors of two sums of £248,18s. 2d. each said to have been underpaid by the vassals at Whitsunday 1862 and Whitsunday 1881 respectively as the agreed-on consideration for entering heirs, disponees, or singular successors. It is admitted that at each of these terms the sum of £497, 16s. 4d. only was paid by the vassals, inclusive of the feu-duty of the year, and that at Whitsunday 1900 the like payment was made, but over and above the feu-duty of the year.

“The parties having thus acted originally on the construction of the feu-contract for which the defenders contend, and latterly on the opposite view, the first question is, which of the two views is correct? Upon that I think there can be very little doubt. If the words of the feu-contract were ambiguous it might be permissible to speculate on the analogy of relief-duty. But the words are really distinct enough to exclude all speculation as to probable intention. There is first a fixing of the feu-duty at £248, 18s. 2d. to be paid ‘yearly’ at the term of Whitsunday in all time coming, and then, introduced by the phrase ‘as also,’ there is a precise obligation to pay every nineteenth year from Whitsunday 1824 the sum of £497, 16s. 4d., ‘being the double of the said yearly feu-duty which will then be due for the whole subjects above mentioned, and so forth, doubling the said yearly feu-duty every nineteenth year countingfrom Whitsunday 1884,’ finally there is a clause binding the superior to enter and receive as vassals the heirs, disponees, and singular successors of the original disponees without demanding any composition therefor, and this clause is prefaced by the words—‘And in regard that the foresaid feu-duty, together with the double thereof in every nineteenth year, … are the agreed and fixed consideration hereby accepted of and in lieu of all compositions for the entries of heirs, disponees, and singular successors in the foresaid lands and others.’ Now, seeing that the ‘double thereof’ has just been defined in the deed as amounting to the sum of £497, 16s. 4d., and that it is stated as ‘together with ( i.e., in addition to) the feu-duty, the conclusion seems inevitable that the total sum to be paid every nineteenth year is three times the feu-duty. In short, I see no substantial distinction between this deed and the deeds in Earl of Zetland v. Carron Company, 3 D. 1124; and Cheyne v. Phillips, in the Outer House, 3rd June 1897, 5 S.L.T. No. 38.

The next question is whether the superiors are barred from making the present claim by their predecessor having accepted too small a sum in 1862 and again in 1881. I have considered the able argument of Mr C. H. Brown for the defenders with care, and certainly with no favour for so stale a demand. He founds on the receipts granted in 1881 and 1900 (that for 1862 not being extant); but neither of these documents creates any formal obstacle so as to require a reduction to clear it away. Nor can it be said that at either of these dates there was any element of transaction, i.e., a settlement of disputed claims. The receipt for 1881 acknowledges the feu-duty and a like sum which it describes as ‘double feu,’ but it contains no words of general discharge. The receipt for 1900 is more detailed, but then it is absolutely correct, and all that can be said about it is that it does not expressly reserve any claim for bygones. Mr Brown ingeniously endeavoured to assimilate these receipts to the granting of a charter by progress, which undoubtedly under the old law imported a discharge of all prior casualties and duties. He of course admits that the implied entry established by the Act of 1874 can have no such effect. But a simple receipt for so much money actually paid can hardly be raised to the level of a charter which the superior was not bound to grant until all his claims were satisfied, and by which he recognised the new vassal as in full possession of the feu. I am not aware of anything short of prescription or express discharge which can cut off a liquid debt standing on a written contract. Delay in making a claim may be fatal if the claim depends on the ascertainment of facts, and the opposite party's case on the facts is prejudiced by the delay. But here there were no facts to ascertain; the claim appeared ex facie of the deed, and the receipt of 1881 in the vassals' possession ought to have shown them that the full debt had not been paid. The under-payment was a joint mistake for which the superior at all events suffers to the extent of losing the interest of his money, and if the vassal suffers by having to meet an unexpected demand, the unexpected nature of it was to some extent his own fault. On the whole I cannot say that there was mora or acquiescence of such a kind as to bar the demand. I must therefore grant decree with expenses.”

The defenders reclaimed, and argued—In feu-rights in case of ambiguity the presumption was for liberty. The terms of the feu-disposition in question were open to construction, while those in question in the cases referred to by the Lord Ordinary were free from doubt. The words “as also,” with which the clause here in question opened, merely introduced an additional stipulation, and the words “together with,” which occurred in the taxing clause, did not support the view which the Lord Ordinary had taken. The view that two feu-duties were payable every nineteenth year instead of only one was the view on which parties had acted prior to 1900, and should be regarded as

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contemporaneous with the feu-disposition itself; that was the true view on a proper construction of the deed—Ersk. ii. 5,49. Even if that view were erroneous the action was barred by mora, and by the acceptance of the payments made in 1862 and 1881; formal words of discharge were not necessary in the receipts for these payments— Niven v. Burgh of Ayr, January 18, 1899, 1 F. 400, 36 S.L.R. 294. Standing the receipts there could be no claim for arrears— Robertson v. Wright, November 29, 1873, 1 R. 237, 11 S.L.R. 94. In a question with a singular successor the superiors were in the same position as if they had given a charter by progress, therefore the payments sued for, if they were ever due, had been discharged— Incorporation of Tailors of Glasgow v. Blackie, June 11, 1851, 13 D. 1073.

Argued for the respondents—The Lord Ordinary's construction of the feu-disposition was the only one that gave effect to all the provisions of the deed. What was to be paid every nineteenth year was something in addition to and not in lieu of the feu-duty, and what was to be paid in addition was a specified sum— Magistrates of Dundee v. Duncan, November 20, 1883, 11 R. 145 (Lord Young, p. 147), 21 S.L.R. 107. The theory of contermporanea expositio did not help the reclaimer, the first payment under the clause in question having been made nineteen years after the granting of the deed. The case of the Earl of Zetland v. Carron Company, June 30, 1841, 3 D. 1124, supported the view that twice the feu-duty was payable over and above the feu-duty of the year. The terms of the receipt in the case of Niven v. Burgh of Ayr, cit. sup., distinguished that case from the present. The Lord Ordinary's was the correct view on the question of bar. The defenders were in the same position as the parties liable in 1862 and 1881.

At advising—