Scottish Court of Session Decisions

The remaining question is whether the defenders, by reason of their receipt of the rents of the built-on portion of the feu, are liable not merely for the part of the cost of the work corresponding to its 171 feet of frontage, but are also liable for that part of the cost corresponding to the frontage of the unbuilt-on portion of the feu. I am of opinion that they are not so liable. The pursuers' claim, as already stated, is rested on a de facto receipt of rents by the defenders. I do not think that the artificial statutory definition of ‘owner,’ in its application to persons who are to be held as owners by reason only of a de facto receipt of rents, carries any further liability than that which corresponds to the subjects for which the rents are paid. In the present case the rents received by the defenders were the rents of certain definite and separable parts of the whole subjects. The remainder, which consists of vacant ground, yields no rent, and the defenders have had no possession of it, and occupy no relation towards it save that of disponees of the superiority entitled to exact payment of the feu-duty of £123, 15s. by the remedies competent to a superior. A superior, however, is not an ‘owner’ within the meaning of the Act of 1871. The pursuers' contention is that the whole area of ground, viewed as a feudal estate, is a ununi quid, and that this unity must be held to be maintained in any question of liability arising under the definition in the sixth section of the Act of 1871. Thus, if there were one house only erected on a feu, occupying however small a part of it, any person who de facto received the rent of it would be thereby subjected to liability in respect of the frontage of the whole feu. The pursuers do not maintain that if the defenders had de facto received the rents of one or two out of the whole number of houses erected on Ogg's feu they would be liable in respect of the whole frontage of the feu. They say, however, that as the defenders have drawn the rents of all the houses they have received the whole yield of rent from the feu. This is true in the sense that the remainder of the feu yields no rents. The rents received by the defenders, however, are not payable in respect of tenancy of the whole feu, but in respect of tenancy of certain defined portions of it. The sixth section of the Act of 1871 does not present the matter of liability from the point of view of feudal unity of estates, but from the different standpoint of rentand tenancy. The ‘lands or premises’ referred to in the section are, in my opinion, the lands or premises in respect of which the rents de facto drawn are due—that is to say, in the present case, the defined areas occupied by the houses.

I am accordingly of opinion that the defenders are liable in respect of that part of the cost corresponding to the 171 feet of frontage of the built-on portion of the feu, but that they are not liable in the part of the cost corresponding to the frontage of the remainder of the feu. The defenders have not challenged the conclusion for interest contained in the summons.”

The pursuers reclaimed, and argued — The question was whether the defenders were “owners” within the meaning of the Aberdeen Municipality Extension Act 1871 (34 and 35 Vict., ch. cxli), sec. 6. The policy of the Act was to give to the pursuers a first charge on rent against the person who collected it, without their having to take into consideration nice questions of ownership. If a person was either de facto or de jure entitled to receive rent he came within the definition. The defenders were de facto in receipt of the rents of the whole property. The built-on and unbuilt-on portions of the stance were a unum quid. The feu-duty not having been allocated the defenders had no several title to the different parts, but in virtue of a title which did not distinguish between them were in receipt of the rents of the whole area. Moreover, the decree of poinding dated 5th March 1904 was applicable to the whole stance. The defenders were therefore liable for the cost of paving in respect of the whole frontage of the feu.

Argued for the defenders—The defenders were not entitled to receive rents. There was no procedure whereby a superior could go directly against a tenant for rent — Prudential Assurance Company v. Cheyne, June 4, 1884, 11 R. 871, 21 S.L.R. 606. Poinding of the ground only gave the superior a right to the moveables on the ground, restricted no doubt in the case of the tenant's moveables to the amount of the rent due by them. What the defenders had got, therefore, was not rent but the moveables on the ground, and they had got these in name of feu-duty— Royal Bank v. Dixon and Others, July 8, 1868, 6 Macph. 995, 5 S.L.R. 636. In any event, if they got rent at all, it was only from the part of the ground which was built on. (Counsel explained that the tender for the sum due in respect of the built-on portion was made because the pursuers had power under the Municipal Act to recover the cost of paving directly from tenants, who were then entitled to deduct from their rents the amount so recovered.)

At advising, the opinion of the Court (the Lord Justice-Clerk, Lords Ardwall, Dundas, and Salvesen) was delivered by

Lord Dundas—In this case the pursuers, the Corporation of Aberdeen, seek to recover from the defenders, the British Linen Bank, the sum of £676, 4s. 2d. with interest, as the proportion of cost incurred by the pursuers in causewaying part of a street, exigible (as they allege) from the defenders as “owners” of certain property fronting the street, within the meaning of a local Act or Acts referred to on record. The necessity for proof was avoided by a joint-minute of admissions adjusted by the parties. The somewhat peculiar facts of

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