Scottish Court of Session Decisions

Section 5 of the Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94) provides—“Unless where it has been or shall be otherwise stipulated, corporations shall pay at the date at which the first composition would have been payable if this Act had not been passed, and every twenty-fifth year thereafter, a sum equal to what but for the passing of this Act would have been payable on entry by a singular successor, and where a composition payable on the death of the vassal shall become exigible from any trustee or body of trustees another composition shall be payable at the end of every twenty-five years, so long as the lands shall be vested in such trustee or trustees … provided always that in the event of such corporation or of such trustee or trustees ceasing to be proprietors of the lands after having paid a composition or compositions in terms of this section, the successor of such corporation or of such trustee or trustees who shall be duly infeft in the lands at the expiration of twenty-five years where a composition is payable on the death of the vassal … from the date of the last payment of composition as aforesaid, shall then pay a composition, and the casualties for and in respect. of such lands shall thereafter become due and payable at the same time and in the same manner as if such lands had never been vested in such corporation or in such trustee or trustees.

The Governors of the Trades Maiden Hospital, Edinburgh, brought an action on 19th December 1905 against William Robert Mackersy, Writer to the Signet, Edinburgh, the summons containing a simple conclusion for payment of the sum of £72, 10s. sterling.

The pursuers, whose over superiors were the Governors of George Heriot's Hospital, were the immediate superiors of certain subjects in Edinburgh, the dominium utile of which was owned by the defender, at a yearly feu-duty of £11,10s., the feu-contract under which he held the subjects (a contract between James Jollie, the pursuer's author, and John Fraser a predecessor of the defender dated October 1808) providing for the payment of casualties, as follows:—“And doubling the said feu-duty at the entry of each heir as use is in name of feu farm to be paid at the first term of Whitsunday or Martinmas that shall happen after the succession to the feu opens to such heir, with a fifth part more of penalty in case of failure, and the lawful interest of double the said feu-duty from and after the said term of payment during the not payment thereof, and the singular successors paying at their entry such composition as the Governors of George Heriot's Hospital, the said James Jollie's superiors, exact from their vassals in similar subjects.”

In 1874 the dominium utile of the subjects was owned by certain marriage contract trustees, who in 1880 as singular successors paid a composition to the then Governors of the Trades Maiden Hospital, in respect of their entry, on the death of the former vassal Matthew Buchan, which had apparently taken place in 1867. This was the last casualty paid in respect of the subjects. On 9th June 1905 the marriage contract trustees had ceased to be owners of the subjects, and the defender Mackersy had become infeft. The pursuers, the Governors of the Trades Maiden Hospital, thereupon called upon him as a singular successor to pay a composition of £72, 10s., which sum was the rental of the subjects for the year Whitsunday 1905 to Whitsunday 1906, less feu-duty of £11, 10s., and £15 for taxes and repairs, the practice of the Governors of George Heriot's Hospital (the pursuers' own superiors) when claiming a composition of a year's rent being, as the pursuers averred on record, to allow deductions from the year's rent of (1) the current year's feu-duty, and (2) 15 per cent. on the gross rent for taxes and repairs, unless the vassal could instruct deductions of a greater amount by the production of vouchers.

Mackersy refused to pay, and the Governors of the Trades Maiden Hospital raised the present action.

The pursuers pleaded—“(1) The defender as heritable proprietor of the said subjects became liable to the pursuers as his superiors in a composition of £72, 10s. as at 9th June 1905. (2) The defender having failed to pay the said composition should be decerned to pay the sum sued for with interest and expenses.”

The defender pleaded—“(1) The action is incompetent as laid. (2) The sum payable by the defender in terms of the feu rights being a year's sub-feu-duty, and the defender having now tendered the same the action should be dismissed with expenses. (3) Alternatively the casualty due by the defender not in any view exceeding the sum originally tendered by the defender—viz., a composition on the basis of a £50 rental—the action should be dismissed with expenses.”

The position, however, adopted by the defender in argument differed materially from that which he had adopted on record, and his ultimate contentions (and on these the case was taken) were—“(1) That upon any view the action as laid was incompetent, the only competent action being one of declarator and for payment of a casualty in the form provided by the Conveyancing Act 1874, Schedule B. (2) That looking to the terms of sec. 5 of the Conveyancing Act 1874 no casualty was due. (3) That if any casualty were due the amount was only a year's sub-feu-duty. (4) That at any rate if a casualty were due and if it fell to be calculated upon a year's rental the year to be taken was 1899 and not 1905.”

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In connection with the third contention the defender stated upon record—“In said reddendo clause it is declared that singular successors in the subjects so sub-feued by the said James Jollie shall ‘pay at their entry such composition as the Governors of George Heriot's Hospital, the said James Jollie's superiors, exact from their vassals in similar subjects,’ viz., a year's sub-feu-duty. The expression ‘similar subjects’ refers to similar sub-feus existing at the date of said contract of feu. The pursuers as successors of the said James Jollie are by said reddendo clause not entitled to demand from the defender more than a year's sub-feu-duty, £11, 10s., in name of composition under the usual deductions, payment of which sum the defender hereby offers to make.”

On 1st February 1906 the Lord Ordinary ( Mackenzie) pronounced the following interlocutor:—“Repels the first and second pleas-in-law for the defender; finds that the rent upon which the composition is to be calculated is £99 sterling; continues the cause that parties may have an opportunity to adjust the deductions to be made there from; reserves all questions of expenses; and grants leave to reclaim.”

The defender reclaimed, and argued—(1) A plain petitory action was incompetent, the only form of action competent being that prescribed by Schedule B of the Act of 1874. Under the old law a petitory action was unheard of, an action for declarator of non-entry being always necessary; accordingly if now competent it must be so in virtue of the Act of 1874, but there was nothing in the Act to suggest this, section 5 merely prescribing the times and amounts of casualties but conferring no new powers or remedies on superiors. Further, the words [ or otherwise as the case may be] in Schedule B clearly referred to the cases dealt with in section 5, viz., casualties due on the lapse of 15 or 25 years from the last payment. But (2) no casualty was yet due. Section 5 provided that the successor of trustees was to pay a composition 25 years after the last composition only where the trustees had paid a composition or compositions in terms of section 5. Looking however to the language of section 5 it was obvious that the payment in 1880 was not a payment in terms of the section, but under the old law. The 25 years' rule therefore could not apply to this case, so that no composition could be exigible until the death of the last-entered vassal, viz., the trustees who for anything disclosed on record might all or some be still alive. (3) Even, however, assuming that a casualty was due under section 5 the pursuers were mistaken as to its amount. Assuming further for the moment that it was a year's rent, the pursuers had chosen the wrong year. The trustees were impliedly entered at the date of the passing of the Act of 1874. A casualty became then due. The next casualty would accordingly fall due in 1899, 25 years later, and that was the year's rental upon which the composition must be calculated, it being unfair that the defender should be prejudiced by the fact that there had been delay in making the demand— Houston v. Buchanan, March 1, 1892, 19 R. 524, 29 S.L.R. 436. But (4) In no event was the composition a year's rent, because upon a proper interpretation of the clause of reddendo it was limited to a year's sub-feu-duty—see Governors of Heriot's Hospital v. Ross, 1815, 6 Paton's Appeals, 640.

Argued for the pursuers and respondents — (1) The form of action was competent. Section 5 gave an express statutory right to a casualty on the lapse of twenty-five years from the last payment; they were not therefore concerned with any questions of entry or non-entry, but were simply enforcing a statutory right to a sum of money by the ordinary form of petitory action. Had they brought an action of declarator of non-entry as suggested by the defender it would have been objected that the lands were not in non-entry as the trustees might still be alive. See Dick Lauder v. Thornton, June 23, 1890, 17 R. 320, 27 S.L.R. 455; Governors of Heriot's Trust v. Drumsheugh Baths Company, June 13, 1890, 17 R. 937, 27 S.L.R. 751; Church of Scotland v. Watson, December 24, 1904, 7 F. 395, 42 S.L.R. 299; Christie's Trustees v. M'Dougall, June 8, 1905, 7 F. 756, 42 S.L.R. 625. (2) The defender's construction of section 5 was obviously wrong. It involved a meaningless distinction between corporations and trustees. On a fair reading of the section it was plain that the trustees' payment in 1880 was a payment “in terms of this section” and that being so another payment became due twenty-five years later, viz. in 1905. (3) As to the suggestion that the year's rental should be 1899, it was well settled that a composition was not due until demanded, and under section 5 it was payment of the first composition that was the terminus a quo— Governovs of Heriot's Trust v. Caledonian Insurance Company, February 20, 1904, 6 F. 442, 41 S.L.R. 313. (4) As to the defender's last argument, the clause did not refer to the amount of the composition, but only to the mode in which the over superiors ascertained the year's rent in the matter of deductions, &c. Had it been meant to limit the composition to the amount of the feu-duty, the clause would have been “doubling the said feu-duty at the entry of each heir and singular successor.”