Scottish Court of Session Decisions

In 1904 William Christie, Braemar House, Edinburgh, and others, the marriage-contract trustees of Mr and Mrs John Christie, Ravelston Park, Edinburgh, as superiors, brought an action of declarator and for payment of a casualty amounting to £50, 4s. against Patrick M'Dougall, wine and spirit merchant, 7 Spittal Street, Edinburgh. The original holding, of which

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the subjects in question formed a part, had been given out in 1835 to one David Callum, a builder, by feu-charter, which in the reddendo clause provided—“Paying therefor yearly the said David Callum and his foresaids (that is, his heirs and assignees) to them (the superiors) the sum of thirty-six pounds fifteen shillings sterling in name of yearly feu-duty, and that at two terms in the year—Whitsunday and Martinmas—by equal portions, beginning the first term's payment of the said feu-duty at the first term of Whitsunday or Martinmas that shall happen six months after the whole or any part of the buildings erected or to be erected on the said area shall be habitable, and either sold or let for the half-year preceding, and the next term's payment at the immediately succeeding term of Whitsunday or Martinmas, and so forth half-yearly and termly thereafter in all time coming, with a fifth part more of liquidate penalty in case of not punctual payment and interest of each term's feuduty from and after the respective terms of payment until payment of the same: Declaring that if it shall so happen that a part of the said buildings shall be sold or let before the whole thereof is sold or let, then only a part of the said total feu-duty proportioned to such partial sale or letting shall be exigible by virtue of this obligation till the whole is sold or let, and that such proportional part shall be allocated and fixed by the architect of the said … (the granters) … for the time being, but that as soon as the whole shall be either sold or let then the said total feu-duty shall become exigible in terms of the foresaid obligations, and doubling the said feu-duty the first year of the entry of each heir or singular successor in name of entry to the foresaid subjects, and that over and above the feu-duty for the year wherein the entry is made (excepting only that in the case of such entry by a singular successor where the vassal last infeft is still alive the feu-duty of the year wherein such entry is made shall not be exigible over and above the duplicate feu-duty payable as above): Providing and declaring, as it is hereby expressly provided and declared, that in regard this charter is issued before the aforesaid buildings are erected, the precept of sasine herein contained shall not be assignable: And the said David Callum shall be bound and obliged, as by acceptation hereof he binds and obliges himself, to procure himself infeft and seised on the precept of sasine herein contained within six months after the date hereof: And also providing and declaring, as it is hereby provided and declared, that it shall not be in the power of the said David Callum or his foresaids to sub-feu, sell, or dispose of all or any part of the said subjects to be holden of him or his foresaids, or of any other interjected superiors, but allenarly to be holden of and under the said … (the granters) … and their foresaids as superiors in the same manner in all respects as the said David Callum and his foresaids shall hold the same themselves in virtue hereof, it being understood and agreed to in respect of the above stipulations against assigning the precept of sasine herein contained, and against sub-feuing in any instance, that the said … as superiors shall grant the original entry to each of the first purchasers from the said David Callum respectively, providing such entry bo taken within six months after such respective first purchaser's entry to the subjects purchased by him without exacting any duplication of the feu-duty payable by them.

The defender pleaded—“(1) The action is irrelevant. (2) The defender not being due to the pursuers the composition or casualty sued for, and the claim therefor being excluded by the express provisions of the feu-charter, decree of absolvitor should be granted, with expenses. (3) The pursuers are barred from insisting in the present action, in respect that they are unable to give the defender a valid right of relief against the holders of the remaining portions of the original feu in the event of his paying more than the just proportion of the cumulo casualty applicable to the subjects in which he is infeft.”

The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), in sec. 3, provides that “‘infeftment’ shall include every title to an estate in land requiring and admitting of infeftment which is duly recorded in the appropriate register of sasines.”

Section 4 (2) provides that infeftment shall imply entry with the superior.

Section 4 (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; and all rights and remedies competent to a superior under the existing law and practice or under the conditions of any feu-right, for recovering, securing, or making effectual such casualties, feu-duties and arrears, or for irritating the feu ob non solutem canonem, and all the obligations and conditions in the feu-rights prestable to or exigible by the superior in so far as the same may not have ceased to be operative in consequence of the provisions of this Act or otherwise shall continue to be available to such superior in time coming; 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 otto pay such casualty irrespective of his entering.”

Section 4 (4)—“No lands shall, after the commencement of this Act be deemed to be in non-entry, but a superior who would but for this Act be entitled to sue an action of declarator of non-entry against the successor of the vassal in the lands, whether by succession, bequest, gift, or conveyance, may raise in the Court of Session against such successor, whether he shall be infeft or not, an action of declarator and for payment of any casualty exigible at the date of such action, and no implied entry shall be pleadable in defence against such action.” …

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The facts of the case are narrated in the Lord Ordinary's opinion.

On 8th November 1904 the Lord Ordinary (Low) pronounced the following interlocutor—“Finds, decerns, and declares that, in consequence of the death of David Callum, wright and builder in Edinburgh, who was the vassal last vest and seised in all and whole the shop No. 7 Spittal Street, Edinburgh, consisting of front shop, two apartments and conveniences, with the cellars under the same, and also the coal cellar under the shop, all as particularly described in the summons, a casualty of £50, 4s. became due to the pursuers as superiors of the said subjects, and is still unpaid, and that the full rents, maills, and duties of the said shop No. 7 Spittal Street, and others after the date of this interlocutor do belong to the pursuers as superiors foresaid, until the said casualty and the expenses after-mentioned be otherwise paid to the pursuers, and decerns and ordains the defender to make payment to the pursuers of the sum of £50, 4s., being the casualty foresaid: Finds the pursuers entitled to expenses,” &c.

Opinion.—“This is an action of declarator and for payment of a casualty which has been brought in the following circumstances:—

“In April 1835 a feu-charter was granted by the commissioners, acting under certain Acts of Parliament, to David Callum, wright and builder, of a piece of ground in Spittal Street, Edinburgh.

“Callum was taken bound to erect certain buildings upon the ground, which it was stipulated should be completed by Whitsunday 1836. The feu-duty was £36, 15s., beginning the first term's payment ‘at the first term of Whitsunday or Martinmas that shall happen six months after the whole or any part of the buildings erected or to be erected on the said area shall be habitable, and either sold or let for the half-year preceding.’ There was also a declaration to the effect that until the whole of the buildings were sold or let the whole feu-duty should not be exigible, but only such part thereof as the architect of the commissioners should allocate or fix as applicable to such part of the buildings as might be sold or let, ‘but that so soon as the whole shall be either sold or let then the total feu-duty shall be exigible, and doubling the said feu-duty the first year of the entry of each heir or singular successor.’

“It was also provided that the precept of sasine should not be assignable, and that Callum should procure himself infeft within six months, and subinfeudation was prohibited. There then followed this clause—‘It being understood and agreed to, in respect of the above stipulations against assigning the precept of sasine and against sub-feuing in any instance, that the said commissioners as superiors shall grant the original entry to each of the first purchasers from the said David Callum respectively, provided such entry be taken within six months after such respective first purchaser's entry to the subjects purchased by him without exacting any duplication of the feu-duty payable by him.’

“Callum erected upon the ground a four-storey tenement, having shops upon the ground-floor and dwelling-houses above. He subsequently sold to various purchasers the whole tenement, with the exception of four shops and the half of two flats, in which he remained infeft. Callum's estates were sequestrated under the Bankruptcy Acts in 1838, but his trustee did not make up a title to the portion of the tenement of which Callum was still proprietor. Callum died in 1842. The sequestration was brought to an end by a decree of declarator, which was obtained in 1903.

“It appears that at the date of the sequestration a Mr Davidson was a heritable creditor of Callum's, and that he took actual possession of the four shops and two half-flats which he and his successors continued to possess until December 1902.

“In 1843 Robert Ainslie, W.S., was the superior of the ground, and in that year, in consideration of the sum of £552, 4s., he disponed to Davidson the superiority of the four shops and the two half-flats of which Davidson was in possession. By the disposition Ainslie assigned to Davidson ‘not only the writs and others of the subjects, but also the sum of £25, 2s. of yearly feu-duty for the subjects hereby disponed … being the proportion effeiring to the said subjects of the cumulo feu-duty of £36, 15s. yearly payable for the whole subjects of which those hereby disponed form a part, the remainder of the cumulo feu-duty being hereby declared to be exigible solely from the other parts of the said subjects, and, notwithstanding anything to the contrary in the investitures, to form no charge against and to be in no way exigible out of the subjects hereby disponed, and, in the same manner, the foresaid sum of £25, 2s. of annual feu-duty hereby assigned being in no case exigible out of the subjects still retained by the said Robert Ainslie, but solely out of those hereby disponed.’

“The pursuers are now in right of the superiority acquired by Davidson.

“The four shops and the two half-flats remained in the hereditas jacens of David Callum until 1903, when Miss Christina Callum and Miss Elizabeth Callum made up a title thereto as (I understand) heirsportioners of David Callum.

“In November 1903 the Misses Callum sold one of the shops (No. 7 Spittal Street) to the defender, and the disposition in his favour was duly recorded in the General Register of Sasines on 23rd November 1903.

“In these circumstance, the pursuers have brought the present action to enforce payment by the defender of a casualty of £50, 4s., being double the feu-duty, not of the shop which the defender has acquired, but of the four shops and two half-flats which constitute the estate of superiority belonging to the pursuers.

“In defence to the action the defender maintained two pleas, namely—( First) That he is a first purchaser of the shop acquired by him, and that therefore, in terms of the clause in the original charter which I have quoted he is entitled to an entry with the superior without payment

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of a duplicand of the feu-duty; and ( secondly) that the effect of the transaction between Ainslie and Davidson in 1843, whereby the cumulo feu-duty was allocated, was to deprive the defender, in the event of his paying the whole casualty claimed, of the right of relief which he would otherwise have had against the feuars in the part of the original feu the superiority of which was retained by Ainslie.

“In regard to the first of these pleas, it is not disputed that the defender is the first person who has purchased from the original vassal or his successors the shop in question, but it is maintained by the pursuers that the clause in the charter providing that no casualty shall be exigible from a first purchaser does not apply to this case.

“What the clause says is, that the commissioners, as superiors, shall grant an entry without exacting any duplication of the feu-duty to first purchasers from ‘the said David Callum.’ If the clause is read literally, therefore, no exemption is

given to purchasers from successors of David Callum. The defender, however, argued that the words ‘or his foresaids’ (that is his heirs and assignees) are implied, and must be read into the clause. I am unable to give effect to that contention. I do not find anything in the charter which necessitates the conclusion that the exemption was conferred upon anyone except first purchasers from the original vassal David Callum. There is only one other instance in the charter in which David Callum is mentioned without the edition of the words ‘his foresaids,’ and that is when he binds himself to take infeftment within six months. Further, the exemption of a first purchaser from David Callum is part of the clause in which it is declared ‘that it shall not be in the power of the said David Callum or his foresaids to sub-feu, sell, or dispose of all or any part of the said subjects to be holden of him or his foresaids, or of any other interjected superiors, but allenarly to be holden of and under the said commissioners and their foresaids, as superiors, in the same manner in all respects as the said David Callum and his foresaids shall hold the same themselves in virtue hereof.’ It is in respect of that stipulation, and the stipulation against assigning the precept, that the exemption from a casualty is given in the case of first purchasers from David Callum alone. When such a marked change occurs in the phraseology of two parts of the same clause, I think that the presumption is that it was intentional.

“Further, it seems to me that there may have been a reason for limiting the exemption to the case of persons purchasing from Callum himself. The acquisition of the feu was evidently a speculation on Callum's part, his object being to erect shops and houses and dispose of them to advantage. The superiors were willing to give him as good a chance of doing so as possible, and accordingly they agreed not to exact the full feu-duty until the whole buildings were sold or let, but only so much as was applicable to such part as might be sold or let. It was, therefore, the superiors' interest that the whole of the buildings should be disposed of as soon as possible, and accordingly they agreed not to exact a casualty from a first purchaser from Callum, a provision which was certainly calculated to facilitate sales. The superiors may, however, very well have designedly restricted the privilege to the case of a sale by Callum himself, so that it should not apply to such a case as has occurred of Callum's representatives retaining a part of the tenement for sixty or seventy years, and then selling it.

“I am, accordingly, of opinion that the clause in question must be construed strictly. and literally, and that the defender cannot take advantage therefrom.

“In regard to the second plea to which I have referred, it was held in Nelson's Trustees v. Tod ( 6 F 475) that, although a superior is not bound to take notice of divisions of the feu and allocations of the cumulo feu-duty made by his vassels, but can, notwithstanding, recover arrears of feu-duty by poinding any part of the feu, yet if he has granted a charter of confirmation to one of the sub-feuars for payment of the portion of the cumulo feu-duty which had been allocated upon the lot held by the latter, he cannot bring a poinding against another lot for general arrears of the cumulo feu-duty, in respect that by granting the charter of confirmation he has deprived the owner of the lot against which the poinding is directed of the right of relief which would otherwise have been open to him against the owner of the lot to which the confirmation applied.

“The defender argued that the same principle is applicable to this case, because the division of the superiority and the relative allocation of the original feu-duty which was made in 1843 have deprived him of the right of relief which he would otherwise have had against those in right of the portion of the feu of which Ainslie retained the superiority. I am of opinion that that contention cannot be sustained. The circumstances in this case are materially different from those in Nelson's Trustees, and I do not think that the principle which was there recognised is applicable. It seems to me that what occurred in 1843 had the same effect, so far as the defender is concerned, as if a feu of the four shops and the two half-flats had then been granted for the first time with a cumulo feu-duty of £25, 2s. It is plain that after that transaction there could be no claim of relief by the vassals of the one superior against those of the other. The four shops and the two half-flats were thereafter held of one superior for a cumulo feu-duty of £25, 2s., and the remainder of the tenement under another superior for a cumulo feu-duty of £11, 13s., and that was the position of matters when the defender purchased his shop. I see no reason, however, why the defender should not have a right of relief against the owners of the remaining three shops and the two half-flats, and I

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apprehend that the pursuers could be required to grant him any assignation of their rights which might be necessary to enable him to operate that relief.

“The circumstances are very peculiar, and I do not know of a case in which an action of declarator and for payment of a casualty has been brought in similar circumstances. The pleas with which I have dealt, however, are the only pleas which were maintained in argument, and as in my opinion neither of them is well founded I must grant decree.”

The defender reclaimed, and when the case came for discussion before the Division raised two additional points—(1) that the action was incompetent, and (2) that if he were liable for a casualty, then by the provisions of the original charter he was entitled to exemption of feu-duty for the year on which he paid such casualty, “the vassal last infeft,” i.e., Callum's heirs, being still alive.

The defender argued—The fee was full by the implied entry of the Misses Callum under the Conveyancing (Scotland) Act 1874, and the obligation of the Misses Callum to pay a casualty was personal to them. But if a claim could be advanced against the defender, then for that purpose this action was incompetent, the proper form of action being one with ordinary petitory conclusions— Church of Scotland v. Watson, December 24, 1904, 42 S.L.R. 299; Dick Lauder v. Thornton, January 23, 1890, 17 R. 320, 27 S.L.R. 455. Further, the disposition of superiority by Ainslie in favour of Davidson operated a splitting of the superiority (as to which see Cargill v. Muir, January 21, 1837, 15 S. 408), and cut off the right of relief open to the reclaimer against his co-feuars in the original feu. He therefore could only be called upon for the proportion of the casualty applicable to his own particular part of the holding. Moreover, allocation had taken place as contemplated in the original feu-charter— Nelson's Trustees v. Tod, March 2, 1904, 6 F. 475, 41 S.L.R. 332. But if he was wrong in these contentions, and was liable for the whole, it would be for only one year's feu-duty, in view of the taxing clause in the feu-charter since the vassal last infeft was alive. The case which ruled the terms of entry by disponees was Wemyss v. Thomson, January 19, 1836, 14 S. 233.

Counsel for the pursuers and respondents argued—The only question in this case was, what was the import of the taxing clause? The last vassal who had paid a casualty was dead. Before 1874 the superior could have raised an action of declarator of non-entry against the proprietor in possession of the lands. Now, i.e., since 1874, his remedy was an action of declarator and for payment of a casualty, for an implied entry neither prejudiced the superior's rights to any casualties nor was it pleadable in defence against such action—Conveyancing (Scotland) Act 1874, sec. 4, sub-secs. 3 and 4. It was well settled that the superior was entitled to exact payment of a casualty, taxed or not, from anyone of a number of disponees— Wemyss v. Thomson, ut supra; Menzies' Lectures (3rd ed.), 819. The decisions in Dick Lauder v. Thornton and the Church of Scotland v. Watson and Others, cit. sup., had no bearing, since in these cases casualties were demanded during the lifetime of vassals who had paid casualties, and there was not a suggestion that if the last expressly entered vassals had been dead the superior could not have successfully raised an action of declarator and for payment of a casualty. Here there had been in fact no multiplication of superiors, but even if there had been, the titles showed that the superiority of the ground of which the defender was a part-owner had been possessed for more than forty years in virtue of one title.