Scottish Court of Session Decisions

This action of poinding of the ground, brought for the purpose of poinding the effects on one of the sub-divisions of a feu for recovery of arrears of the cumulo feu-duty, was raised in the following circumstances:—By feu-charter dated 9th February 1827 Græme Reid Mercer of Mavisbank feued to John Hogg and Thomas Brown and their heirs and assignees whomsoever the lands known as Kevockmill Bank, Lasswade, extending to nearly six acres. Subinfeudation was expressly prohibited, and the yearly feu-duty was fixed at £69,15s.9d., of which the feuars obliged “themselves, their heirs, executors, and successors” to make payment

After Mr Mercer's death his trustees became the superiors of the above feu. In 1899 the superiority was acquired by the trustees of the deceased William Nelson in virtue of a decree under the Heritable Securities (Scotland) Act 1894.

After 1831 the vassals in the said feu divided it into four lots, and apportioned the cumulo feu-duty in these lots as follows:—£12 on each of the lots to the east, and £22, 17s. 10 1 2d. on each of the lots to the west. The superiors never sanctioned this sub-division or apportionment.

The first or eastmost lot after various transmissions came into the possession of the late Colonel Pullan in 1882. In 1893 Miss Jean Tod as heritable creditor obtained decree in an action of maills and duties applicable to this lot, and in virtue of that decree uplifted the rents and profits of this portion of the feu. The tenant of this lot and the buildings thereon was A. W. Gordon.

The second lot was disponed in 1858 to W. J. Hitchcock. In the same year Mr Mercer's trustees, the superiors of the lands, granted in favour of Mr Hitchcock a charter of confirmation, which bore that the subjects were to be holden under the superiors as immediate lawful superiors “for payment of the sum of £12 sterling of yearly feu-duty” payable as therein stated with the casualties specified, which feu-duty of £12 was stated to be “a proportional part of the cumulo feu-duty” of £69, 15s. 9d. yearly “payable from the whole of the grounds feued by the said John Hogg and Thomas Brown from the said Græme Mercer, reserving always the bygone and current feu-duties, and our own right and the right of all others concerned as accords in law.”

This lot was thereafter acquired by John Kolbe Milne.

The third lot was after various transmissions acquired by the North British Railway Company.

The fourth or westmost lot was in 1879 disponed to Dr William Jameson, who was infeft in the subjects. It was bequeathed by Dr Jameson on his death in 1892 to his widow, but both she and his heir-at-law renounced the feu, and the feu-duty of £22, 17s. 10 1 2d. thereafter ceased to be paid.

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After William Nelson's trustees acquired the superiority in 1899 they demanded from Miss Jean Tod not only the feu-duty of £12 exigible from the first or eastmost lot which was in her possession, but also the feu-duty of £22, 17s. 10 1 2d. applicable to the fourth or westmost lot renounced by Dr Jameson's widow and heir-at-law. As Miss Tod refused to pay anything but the £12 exigible from her own lot, William Nelson's trustees raised the present action of poinding of the ground, concluding for letters authorising poinding of the effects on the eastmost lot, and for payment of £113, 19s., being the arrears of feu-duty payable since 1899 from the eastmost and westmost lots. There were called as defenders (1) Henry Alexander Seaton Pullan, the heir-at-law of Colonel Pullan, (2) Miss Tod, and (3) A. W. Gordon for his interest as the tenant of the eastmost lot, and also ( a) Colonel Pullan's executor-dative, ( b) the North British Railway Company, ( c) J. K. Milne, ( d) Dr Jameson's widow, and ( e) Dr Jameson's heir-at-law.

Miss Tod lodged defences, and pleaded, inter alia—“(6) The pursuers are barred from insisting in the present action in respect that they are unable to give this defender a valid right of relief against the other feuars in the event of her paying more than the £12 due in respect of the said subjects (the eastmost lot).”

On 22nd July 1903 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Finds that the pursuers by granting the charter of confirmation dated 10th, 11th, and 15th June 1858 in favour of Mr Milne have deprived the defender of her right of recourse against Mr Milne and the portion of the feu in question possessed by him, which would otherwise have been open to her: Therefore assoilzies the defenders from the conclusions of the summons, and decerns,” &c.

Note.—“This has seemed to me a case of great difficulty. The question is whether in the special circumstances a superior of a feu which has been sub-divided can execute a poinding on one of the sub-divisions for recovery of arrears of the cumulo feu-duty? The question seems novel, and there is not much authority which gives material assistance. A proof was not asked, and does not seem to be necessary, and I think the case may be decided on the elaborate debate which took place in the Procedure Roll. I cannot say that I think the record clearly or satisfactorily expressed, and although the debate was anxious and able, I have felt on studying the case that some points might perhaps have been more fully explained.

The facts are as follows—By feu-contract dated in 1827 Mr Mercer of Mavisbank feued to John Hogg and Thomas Brown and their heirs and assignees whomsoever the subjects inquestion called Kevockmill Bank extending to nearly six acres. The feu was granted under the condition that neither the feuars nor their foresaids should be at liberty to sub-feu. The feu-duty was £69, 15s. 9d., of which the feuars obliged ‘themselves, their heirs, executors, and successors' to make payment. The pursuers acquired the superiority in the manner stated on record.

The feu was afterwards divided by Brown and Hogg into four parts. The eastmost part was disponed to Hogg in 1831; it came into the possession of Dr Jameson about 1875, and he in or about 1882 conveyed it to Colonel Pullan now deceased. The portion next it was disponed in or about 1858 to one Hitchcock, who at a date not given conveyed it to Mr John Kolbe Milne, now the proprietor. The next portion was conveyed at a date not given to some person not named, from whom it passed to the North British Railway Company; and the western part was conveyed by Hogg and Brown to Mrs Jameson, from whom it passed to Dr Jameson, who was infeft in 1879. I think that all the disponees were infeft.

Now, thus far nothing is said to have been done or to have happened which could affect the superior's rights. If when matters stood in that position the feu-duty had fallen into arrear there is no doubt that the superior could have recovered it by poinding of any part of the feu by whomever possessed. He had nothing to do with the divisions of the feu. He was still superior of the undivided feu, and if he had had occasion to bring a poinding of the ground there was no reason why he should distinguish between one part and another, Further, he stood in no legal relation to any of the disponees. He was not a party to any contract with any of them.

It is averred that the cumulo feu-duty was apportioned on the various lots, £12 being apportioned on the eastmost, Pullan's lot; £12 on Mr Milne's lot; and £22, 17s. 10 1 2d. on each of the other lots. That allocation, however, was not made by the superior. These apportionments are said to have been rateable, and it does not seem to me that the fact that there were such apportionments is of material consequence. The superior had nothing to do with them, at least directly. He could not have raised any action against any of the allottees for payment of any of the portions of the allotted feu-duties. The allottees were not his debtors. So far no question has been raised.

But there were two other things which happened, and the defence is based on these and these only. In the first place, the superiors granted in favour of Mr Milne's predecessor a charter of confirmation dated 10th, 11th, and 15th June 1858, which bore that the subjects were to be holden under the superiors as immediate lawful superiors ‘for payment of the sum of £12 sterling of yearly feu-duty,’ payable as therein stated with the casualties specified, which feu-duty of £12 was stated to be ‘a proportional part of the cumulo feu-duty’ of £69, 15s. 9d. yearly, ‘payable for the whole of the grounds feued by the said John Hogg and Thomas Brown from the said Graeme Mercer, reserving always the byegone and current feu-duties, and our own right, and the right of all others concerned, as accords of law.’

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The other circumstance that happened was that Dr Jameson died unentered (the defenders say in 1892), and his heir-at-law refused to make up a title to the subjects, and the feu-duties allocated on that lot ceased to be paid. It was said at the debate that no buildings had been erected on it, and I suppose that the feu-duty allocated on it could not be recovered out of it. There do not seem to have been any arrears due to the superiors except the arrears of the feu-duty allocated on that lot, because although arrears of the duty allocated on Pullan's feu are included in the sum mentioned in the summons it did not appear to me that these were really in arrear.

In these circumstances this action of poinding of the ground has been raised, and it concludes for letters authorising poinding of the effects on the ground of the eastmost lot, i.e., Pullan's lot, belonging (as I understand) to the proprietor, the tenant, and the present defender as an heritable creditor in possession. The action does not conclude for poinding of Milne's lot, or of that belonging to the Railway Company, or of that which had belonged to Dr Jameson. If Henry Pullan and Mr Gordon be left out of view, as in this question they may, the conclusion is for poinding of the effects of Miss Tod.

The true object of the action is to extract from Pullan's lot and Miss Tod's effects the feu-duty which had been allocated on Jameson's lot. Considering that the superior knew all about the sub-division of the feu, that result seems decidedly inequitable.

None of the owners of the several lots have lodged defences. The only defence is by Miss Tod, who avers that she holds a bond and disposition in security granted by Colonel Pullan, and that she has obtained a decreet of maills and duties of the subjects, that is, of Pullan's lot.

It is averred that as heritable creditor in possession the defender has intromitted with rents in excess of the sums specified in the summons. That averment seems to be irrelevant and to add nothing to the pursuers' case, and there is no corresponding plea, because there is no conclusion against Miss Tod for payment of money. There is no petitory conclusion at all The only conclusion is for poinding of the ground. She, however, has lodged defences and has stated various pleas in defence. But it may be noticed that she has not pleaded that her right under the decree of maills and duties excludes or competes with the pursuers' poinding.

No objection has been taken to her right to defend. I do not think I have information enough to enable me to judge how that stands. Her right has been tacitly admitted, and I therefore assume, without expressing any judicial opinion on the subject, that the case is the same as if the defence had been stated for Colonel Pullan or his representatives.

The pursuers' plea is simple; it is that as superiors they had a right to poind the effects on any and every part of the feu in order to recover their feu-duty.

I did not understand the defender to dispute that proposition as generally stated, but she maintained that there were particulars in this case which negatived the pursuers' right. She did not dispute that the superiors' right to poind was not affected by the division of the feu, or by the allocation of the feu-duty, but she argued that it was affected, and indeed wholly lost, (1) by the charter of confirmation to Milne, and (2) by Dr Jameson's renunciation of his feu.

The defence was rested mainly on the case of Wemyss v. Thomson, January 19, 1836, 14 S. 233. That case related to a feu-right in which subinfeudation was prohibited, and the question was as to the terms of the charters to be granted to persons who had acquired portions of the original feu. The interlocutor bore that ‘the pursuers, as superiors, are entitled to insist on the defenders taking charters containing an obligation for payment of the whole cumulo feu-duty, and of the relief on the entry of heirs; but that the defenders, as vassals, are entitled to have inserted in said charters an obligation by the superiors to grant to them whenever required, at the defender's expense, an assignation to the effect of enabling the defenders to recover from the co-feuars whatever sum or sums may at any time be exacted from them beyond their own just proportion of the said cumulo feu-duty and relief.’ …

I do not understand that it was there decided that the disponees were bound to enter, or that the superiors were bound to receive them, although they may have been. I rather think the judgment merely determined what the terms of the charters should be if the disponees voluntarily entered. This case is referred to by Professor Menzies (Lectures, 3rd ed., p. 819). ‘While the vassal,’ he says, ‘is at liberty to subdivide his feu, that does not infringe upon the right of the superior to have his returns and casualties adequately secured. Although therefore the feu-duty and composition may be apportioned among different disponees, the superior is entitled to have everyone of them made ultimately liable for the cumulo feu-duties and casualties, he being bound, on the other hand, to grant upon payment an assignation of the claim, in order to enable the feuar who pays to operate his relief against the others for their proportions. The terms of a clause for giving effect to this arrangement were carefully adjusted in the case of Wemyss v. Thomson.’ I read that case as referring to the relations between superiors and entered vassals, and not to the relation between superiors and disponees of a portion of the feu who have not been entered. If, in the present case, after the cumulo feu-duty had been allocated on the various disponees, these disponees had obtained charters from the superiors, these charters, on the principle of Wemyss’ case, would probably have borne an obligation by each feuar for the cumulo duty, but also they would have borne an assignation by the superior, which would enable him to recover from

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the other vassals any overpayments which he might be called on to make.

Professor Menzies proceeds, after the passage quoted, to say, ‘When the superior, however, has consented to an apportionment of the feu-duty, the reservation of his recourse for the full amount against the proprietor of each of the subdivided parts, although sufficient to enable him to recover arrears due by other portioners, is not sufficient to authorise a declarator of irritancy ob non solutum canonem—Knight v. Cargill, 2nd July 1846, 8 D. 991.’ But it will be observed that in that case the right to recover the full feu-duty was specially reserved by the superior.

In this case the defender maintains that the effect of the charter of confirmation to Milne was to relieve him and his feu from all connection with or burden under the original feu-contract for the cumulo feu-duty, and to put it out of the power of the superior to grant any assignation by which relief could be enforced against Milne or against his lot. I think his portion ceased to be part of the original feu, and that the feu-duty allocated on it was not part of the cumulo feu-duty.

The defender therefore maintains that the superior has innovated on and diminished her right of relief in the event of more than the amount allocated on Pullan's lot being exacted from her. That is, she maintains that prior to that charter she would have had a right of recourse on Milne's lot, whereas now her recourse is limited to the lots of the railway company and of Dr Jameson.

The questions therefore seem to come to these—Would the defender, in the event of the pursuers recovering payment of the arrears of the cumulo feu-duty from her, have been entitled to relief against Milne, as being proprietor of a portion of the original feu, if the charter of confirmation had not been granted? If the answer be in the affirmative, it does not much matter how that relief would be effected, whether by an ordinary action of relief or by an action of poinding of the ground as the pursuer's assignee. I think that question should be answered in the affirmative, although the point seems a difficult one. The second question is—Will such a right be open to the defender in present circumstances? and the answer must be in the negative, because the superior has relieved Milne and his lot from obligation for the cumulo feu-duty. If these answers be correct, this case must, I think, be decided for the defender on the ground that the superior cannot recover the arrears of feu-duty from the defender when he has materially reduced her right of relief.

The result is at anyrate equitable, and accords with the principle of judgment in Wemyss v. Thomson, although no doubt the cases are different.

There is not much authority on the point. Reference was made by the defender to North Albion Property Investment Company v. Wilson, 14th November 1893, 21 R. 90, 31 S.L.R. 58; and M'Kirdy v. Webster's Trustees, 1st February 1895, 22 R. 340, 32 S.L.R. 252. It appears to me that the result is not inconsistent with Guthrie & M'Connachy v. Smith, 19th November 1880, 8 R. 107, 18 S.L.R. 75. I think that judgment comes to little more than this—that when a feu-duty is paid by or for a feuar the superior is bound only to give a discharge and not an assignation.

The defender further maintained that the renunciation of Dr Jameson formed a bar to the pursuer's action. No authority bearing on that point was referred to, and I would not be prepared to sustain the defence on that ground; but I have, after much difficulty, come to the conclusion that the pursuers' action is barred by the charter of confirmation in favour of Mr Milne.

The defender states that the pursuers have been twice unsuccessful in their claims against the defender, and she has produced two records in the actions before Lord Stormonth Darling and Lord Low. But there was little use in producing these records unless I was informed of the judgments of the Lords Ordinary, which I have not been. I can only assume, therefore, that these judgments had no bearing on the questions discussed before me.”

The pursuer reclaimed, and argued—If a superior had not consented to the original feu being subdivided he was entitled to recover the cumulo feu-duty out of any part of the original feu. The sub-feuar could in all cases protect himself by paying the superior's preferable claim, and when he did so he had a right of relief pro rata against the owners of the other sub-feus— Sandeman v. Scottish Property Investment Company, June 29, 1885, 12 R. (H.L.) 67, per Lord Watson, at p. 73, 22 S.L.R.854. The sub-feuar did not require an assignation from the superior in order to enable him to recover the proportions of the feu-duty applicable to the other parts of the original feus from their various owners, and the superior was not bound to give such an assignation— Guthrie & M'Connachy v. Smith, November 19, 1880, 8 R. 107, 18 S.L.R. 75. The superior had not interfered in any way with the rights of the defender by granting the charter of confirmation to Hitchcock, the feuar of the second lot. In that charter the rights of all others were reserved, and Miss Tod would be quite entitled after paying the duty on the westmost lot to seek relief against Milne, the proprietor of the second lot, for a proportion of such payment. The granting of the charter of confirmation did not extinguish the liability of the other sub-feuars for the whole of the original feu-duty, the recourse against Milne not being prejudiced— Muir v. Crawford, May 4, 1875, 2 R. 148. Even if it was held that the granting of the charter of confirmation prevented the defender Miss Tod having recourse against Milne, decree of absolvitor should not be granted. The proper course was to deduct the proportion of the feu-duty which would have been payable by Milne's lot, and grant decree for the remainder against the defenders.

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Argued for the compearing defender and respondent—The superiors proposed to pick out a particular sub-feuar and poind the effects on that sub-feu, in order to recover a portion of the feu-duty. Such a right had never been recognised. A superior might poind for the whole cumulo feu-duty, which was a debitum fundi and a unum quid. If the owner of part of the original feu paid the cumulo feu-duty, the superior was bound to give an assignation of the claim in order that she might recover a just proportion from the owners of the other parts—Menzies' Conveyancing (Sturrock's edition) 833; Wemyss v. Thomson, January 19, 1836, 14 S. 233. But it was impossible for the superior to do so in the present case on account of his having recognised the allocation of the feu-duty on Milne's lot by the charter of confirmation to Hitchcock. The relief of co-feuars was of two kinds—(1) personal action, or (2) relief against the ground of the other feuars. But by having granted the charter of confirmation the superior had prevented himself and the other sub-feuars from proceeding against the feu which had been recognised by the superior— Knight v. Cargill, July 2, 1846, 8 D. 991. The superiors had thus prejudiced the rights of the sub-feuars, and the defender should be assoilzied. Absolvitor was the proper decree, because the superior had refused to give over an assignation of his rights with regard to any of the other sub-feuars. The case of Guthrie had nothing to do with the present case. It was a case between a superior and his vassal. The present case was one between a superior and a sub-feuar, and a superior had no direct personal action for the cumulo feu-duty against a sub-vassal holding part of the feu— Sandeman v. Scottish Investment Company Building Society, Limited, June 8, 1881, 8 R. 790, 18 S.L.R. 559.

At advising—