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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> William Harley, and Others v. Archibald Campbell, Esq. of Blythswood [1825] UKHL 1_WS_690 (29 June 1825)
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Cite as: [1825] UKHL 1_WS_690
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SCOTTISH_HoL_JURY_COURT
Page: 690↓
(1825) 1 W&S 690
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1825.
1 st Division.
No. 59.
v.
Subject_Superior and Vassal — Clause. —
The Court of Session having found, that a clause in a feu-contract, allowing subdivisions of the feu to be held of the superior, but declaring that all dispositions, conveyances, and infeftments, of the whole or any part of the lands, shall be made out by the superior's agent, otherwise the same shall be null and void, was available to the superior to entitle him to reduce any deed or conveyance not prepared by his agent, in terms of the original feu-contract, —the House of Lords remitted the case for review, and the opinion of all the Judges.
The lands of Blythswood are held under a strict entail prohibiting alienation. From their immediate proximity to Glasgow, there was a prospect of feuing to advantage; and to accomplish that object, an Act of Parliament was obtained, vesting part of the estate in trustees. Harley, merchant in Glasgow, in 1804, feued a large area of the property from the trustees, with the object of subdividing and selling the ground in lots for building. By the feu-contract it was inter alia provided, “that it shall not be lawful to, nor in the power of the said William Harley, or his foresaids, at any time hereafter, to sub-feu the foresaid lands or any part thereof, or absolutely to dispone the same, so as to be held of themselves, but whatever of the said lands shall be so feued or disponed, shall be held immediately of and under the said trustees, and their assigns or successors.” Then it was conditioned, that if the feuar dispone only part of the lands, the annual duty of such part or portions should bear such proportion to the total feu-duty, as the space so sold or disponed did to the whole space originally feued; but when, in consequence of the subdivision, the feu-duty of any particular portion came to be less than L. 10 sterling, there was a certain graduated scale of additional per-centage stipulated in favour of the superior, reaching as high as 25 per cent when the feu-duty for any portion fell below L. 2 sterling; and on these terms the trustees become obliged to receive and enter the disponees of Harley as vassals, and to admit of the subdivision of the feu-duties accordingly. It was next provided, “that all the dispositions or other conveyances of the whole, or of part and portions of the said lands, shall be recorded in the books of a competent Judge, within one month of the date thereof, which shall contain warrant to the said trustees or their foresaids to raise letters of horning, and all other necessary execution, against the said disponees or their foresaids, for recovery of the feu-duty or feu-duties which may
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Harley having become bankrupt, he executed a general trust-deed of his whole property, in favour of trustees for behoof of his creditors. Dun, Wright, and M'Gregor, purchased from Harley's trustees a piece of the ground, originally feued by him from Blythswood, for an annual feu-duty of L.31. 3s. 8d. and a purchase price of L. 900; and they accordingly received a disposition from Harley, with consent of his trustees, on which infeftment followed. The disposition and infeftment were in exact concordance with the original feu-contract, except that neither were made out by the agent of the superior. The vassals presented their feu-disposition for confirmation, which was refused in respect of the condition in the original charter. Upon this refusal the vassals intimated, that “they would hold the superior liable in all loss, damage, and expenses, which the disponees in said disposition may sustain or be subjected to by the want of such charter of confirmation.” In order to ascertain the precise nature and extent of his rights, Blythswood raised an action of reduction, calling for production of the disposition in favour of the vassals, with subsequent infeftment, alleging, as the ground of reduction, that the disposition and sasine “had been made out and extended by agents different from the agent of the superior, and have been granted in complete violation of the clause above quoted;” and concluding, that the disposition and sasine “ought and should be reduced, retreated, rescinded, cassed, annulled, decerned, and declared, to have been from the beginning, to be now, and in all time coming, void and null, and of no avail, force, strength, or effect in judgment, or outwith the same, and the pursuer reponed and restored thereagainst in integrum; and the said writs being so reduced and set aside, it ought and should be found and declared, by decree foresaid, that the said William Harley, and his
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The Lord Ordinary reduced, declared, and decerned in terms of the libel; and on advising petition and answers,
_________________ Footnote _________________ * These are the opinions which were laid before the House of Lords.
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I must own I have heard some things stated to-day that I am not prepared to go along with. It is said, that a purchaser has no right to demand confirmation from the superior. I did not know this. I considered that he was bound to confirm. I may be mistaken; but I still think, that at common law Mr Campbell is bound to confirm. But it is said that this is not a real right, but only a personal right. If so, there are only two ways it could be made effectual, either by a charge ad factum præstandum, or by a claim of damages. But neither of these would be effectual. I cannot understand how any thing but a real right can entitle a superior to challenge and irritate a contract entered into with third parties; yet it is said not to be a real right. But this is an irritancy declared of one right, although the other is not resolved. In the case of an entail, you must irritate the
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The Court adhered. On advising reclaiming petition and answers, Lords Hermand, Balgray, and Succoth, expressed their opinions very shortly in terms of the opinions formerly delivered.
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This is an action by Mr Campbell against the disponees to a certain feu granted by him, not against the party who entered into any contract with that gentleman, for this is not alleged; it is not pretended that there was any direct contract between Blythswood and the present petitioner; but the action is brought against a purchaser—and the object of the action is to set aside the disposition granted to a third party, with whom the pursuer never directly contracted. The action is brought upon the ground that the deed is liable to reduction, not because it is at variance with the terms of the original feu-right; for this is not pretended, there is not the least insinuation of that kind—but the only ground on which the pursuer objects to this deed is, that it is not prepared by his own agent. In defence against this action it is pleaded, 1st, That the pursuer has no title or interest to pursue this action; 2d, That it is not the proper action for obtaining the remedy which he wants; and, 3d, That the burden here is not a real burden upon the lands; and therefore cannot be made effectual against the possessor.
I should have been disposed to have stated these defences in the reverse order—to have considered the last defence first, from its general importance, and as conclusive of the present case. But in order to be more distinct in the few observations I mean to offer, I shall follow the order of these defences as stated by the party. First, What is the interest alleged by the pursuer? for I take it to be granted that he must shew an interest. It will not do to say merely, that he wishes to get out of the Court of Session; for here I cannot agree with my brother, Lord Hermand. It appears somewhat strange to say, that his interest is to keep out of this Court, and to attain that object he brings his action in this Court. This will not do; it is impossible for a person to pretend that he has an interest to keep out of this Court, by bringing an action here for that purpose. But it is said, that this clause was necessary or expedient for enforcing the other clauses in the deed. In the clause per se, there is no apparent interest in Mr Campbell at all. It is true, his agent may have an interest, but Mr Campbell himself has none. He says, however, it is necessary for enforcing the other clauses. That plea, however, can never apply here; for, in the present case, it is not alleged that there has been any deviation whatever from the terms of the feu-rights; therefore
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Now, as to the first interest stated for the pursuer, you will observe, that every one of the stipulations are inserted in this deed, and every one of them are enforced by irritancies, each applicable to the different stipulations. Why is it necessary to guard, by a separate clause, a clause already sufficiently protected by irritancies? But it is said, that the sales might be concealed but for this clause; but is this clause calculated to prevent that concealment, or can it do so? Can a sale be concealed, which is completed by disposition and infeftment which enters the record? This stipulation affords no protection whatever; because there is nothing to prevent a party from concluding a bargain by minutes of sale, and entering into possession. But it is said, a great number of inquiries must be made among the agents; but why not? Will that circumstance give any interest to reduce a title? But this point is so very ably argued in the petition, that I need not dwell upon it.
But the second reason is, that he brings this action to avoid another action with which he is threatened, to compel him to grant a charter of confirmation. You will find it admitted in the answers, p. 17. that the obligation to confirm at common law would not entitle him to bring this action. “It may be true, that if the feu-rights had been silent in that particular, the respondent would have no title to reduce. He must have been contented with refusing the confirmation, if he thought proper. But the present action is brought precisely because the feu-rights are not silent.” Therefore it is admitted, that at common law the obligation to confirm would not entitle him to bring this action. On this point, it is proper that your Lordships should turn to the disposition, (see Appendix to first Petition). There is nothing here which appears to me as binding him to confirm. But it is sufficient for my present view of the case, that the matter is doubtful,—that it is questionable whether he is bound to confirm or not. Here you are called upon to reduce this title, because there is such a condition, before it is ascertained whether there is such a condition or not. Supposing, in a proper action for that purpose, your Lordships should find that he is not bound to confirm, are you not in this case anticipating the judgment you might pronounce in that case? It is true there
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But I apprehend there is a different objection, which may be stated to the title to insist, which it would be right for both parties to consider. Your Lordships will attend to the Act of Parliament authorizing those feus, “As to such parts or part of the lands aforesaid as shall be feued, it shall not be lawful to, nor in the power of the said trustees, nor any of them, to accept or take any fine, premium, grassum, or consideration whatever, for granting the same; but such feus shall be granted at, and for payment of, the highest feu-duty or feu-duties that can be got or procured for the same.” These are to be granted for the highest feu-duties. Now, will any person tell me, that under this strange stipulation any person will give the same price that he would have done otherwise? This clause necessarily exposes the vassal to an additional expense. This is indeed admitted in the answers. Is it no additional expense for a man to pay a set of agents? This is a circumstance which must be in the view of parties. The pursuer seems to consider this as a matter of very little importance; but he admits the fact that this does diminish the feu-duty. Turn to the 22d page of the Answers:—
“If it shall be held that these emoluments are derived from the vassals, and that the expense of employing the respondent's agent in drawing the deeds is, to a certain extent, an addition to what would have been necessary if they had employed their own agents, where is the hardship? In that case it just resolves into a species of tax upon each transference, which, from the terms of the original feu-contract, they must have seen they were bound to pay. But if, in another view, and which the respondent rather takes to be the true one, this circumstance, like every other burden, was taken into consideration by each vassal in fixing the feu-duty which he was bound to pay, then the lucrative office is in truth one of which the emoluments are defrayed by the superior himself, in the shape of a diminution from that feu-duty which he would otherwise have drawn.”
Here it is expressly admitted, that the feu-duty has been diminished. Another consideration, therefore, than the feu-duty, has been taken into account here; and I think it is the interest of both parties to look how this agrees with the terms of the Act of Parliament. I shall not say more, but I think it must be the opinion of every impartial person, that Mr Campbell exposes himself to a very great risk by inserting such a stipulation in his feu-rights, and therefore he
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The second defence is, that this is not the proper action. I conceive that it ought not to have been a reduction, but a declaratory action. By the law of this country, (and I believe it is peculiar to this country), any person who apprehends that a claim is to be made against him, may bring forward his action to have that put an end to, before the claim is actually made; and therefore, where a claim is apprehended, the proper remedy is a declaratory action. A reduction may no doubt be competent, where both the pursuer and defender are parties to the deed sought to be reduced. Thus, a tenant may reduce a tack, where the landlord is going to make a claim against him which he thinks the tack does not warrant; but if a claim is made against the tenant, will the tenant be entitled to bring a reduction, not of the tack, but of the landlord's title to the estate? This is the case here, for Blythswood is not a party to this deed; but he says, he must either confirm or bring this action. But when he states that he must reduce, he says, there are other cases where the rights have not been prepared in terms of the original feu stipulations. Why then does he select this party, who is innocent of any deviation from the feu-contract? I shall not detain your Lordships longer on these two points, but proceed to what I consider the most important in a general point of view, viz. whether this is a real burden or not. I apprehend clearly it is not; and in pages 40. and 41. of the petition, you have this doctrine extremely well explained and supported by the authorities of our first writers on the law of Scotland, (his Lordship read them).
You will look to those clauses which are on page 7. of the petition, (his Lordship read them). If you leave out the irritant clause, there is not one word here enforcing the obligation. Is this clause expressed, as Erskine says, in the words proper
_________________ Footnote _________________ * See 2. Shaw and Dunlop, No. 277.
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Nothing can evince more clearly the strangeness of this action, than the admission that a claim for total reduction is not here. It is admitted that this disposition is good against all except the superior, when it is admitted that the object of this action is merely to reduce this deed quoad the superior. I apprehend, that the plea of the pursuer is hostile to every principle. It is quite an anomaly in our law, that a deed should be reduced as to one party, and should be good against all the world beside. (Here Lord President hinted as to a reduction on the bankrupt statutes).
The reductions under the bankrupt statutes are total reductions. The deeds are completely set aside—no doubt the debt may still subsist, but the deeds themselves are null for ever. Take the case of an indorsation of a bill. You may reduce that indorsation, and the rest of the bill may be good. But every indorsation is a bill itself. All the actions on the Act 1696 and 1621 are to reduce and set aside the deed in toto. The pursuer gives various examples of this in the answers, p. 14. The most favourable example is that of a freeholder to reduce a decree of the commissioners. But who can doubt this? No doubt it may still continue to be the rule of payment although reduced, because there is no other rule of payment. Just like a lease; a lease may be reduced and set aside, but if the tenant continue in possession without any stipulation or bargain, that reduced lease will still continue to be the rule of payment, just because there is no other rule. But you will attend to this. This deed is a disposition and infeftment,—a real recorded right. When a disposition and infeftment are reduced by the proper party, the record is kept correct by the insertion of a new investiture. But here the record is still to remain. As it is only to be reduced quoad the superior, this infeftment must continue in the record. The petitioner is, and will continue to be, the feudal proprietor of the feu. Mr Campbell cannot touch it. So here you have a decree of the Court, declaring an infeftment null and void, and yet this infeftment stands on the record a proper investiture. What is to be the state of the records of this country if this is to be the case, that you have a recorded infeftment which you cannot touch, and a recorded judgment reducing that infeftment? No doubt it is said, that a new disposition may be granted, and if that is written by Blythswood's agent, he is bound to confirm it. But how could he confirm such a conveyance, knowing, as he does, that the feu is another person's? All this shews how extremely difficult and dangerous it is to deviate in the least degree
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I am quite clear that this is a condition essential to the feu.
The Court adhered. *
Harley and Others appealed.
Appellant.—The respondent has not shewn any interest to enforce the clause in question. It confers on him no pecuniary or patrimonial advantage whatever. Indeed, his interest is directly opposite. He has no title to reduce the conveyance in question. His title as superior enables him to claim what is due to him as
_________________ Footnote _________________ * 2. Shaw and Dunlop, No. 326.
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Respondent.—The clause in the feu-rights stipulating, under the pain of nullity, that the dispositions granted by the vassals shall be written by the superior's agent, creates a legal interest in its observance, which the respondent is entitled to protect by an action in the proper form. This interest is obvious on looking to the other clauses of the contract. The form of action adopted is the proper form for ascertaining and defending that interest. Besides, every rescissory action is truly declaratory. The clause is, both in its nature and form, binding on singular successors; and the objection, that the obligation is not made a real burden on the land, rests on a misapplication of the principle which rules the point. It is a condition of, and burden inseparably attached to the feu-right, and valid in its nature and operation. The contract contains nothing inconsistent with the 20. Geo. III., and the whole statement of the inexpediency and dangerous complexion of the clause in question, is mere declamation. This is a deliberate bilateral contract, which, as there is nothing illegal in its construction, must be fairly and fully implemented. And this remarkable feature attends this
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The House of Lords ordered, “that the cause be remitted back to the Court of Session to review the interlocutors complained of; and it is further ordered, that the Court to which this remit is made, do require the opinions of the Judges of the other Division in the matters and questions of law in this case in writing, which Judges of the other Division are to give and communicate the same; and after so reviewing the interlocutors complained of, the said Court do and decern in this cause as may be just.” *
_________________ Footnote _________________ * See, for the result of the remit, 6. Shaw and Dunlop, p. 679. No. 245.
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My Lords,—Mr Harley, who had taken part of this property upon feu, granted it over in various proportions to Mr John More, as cashier of the Royal Bank. The disposition he has made was not prepared by the agent for Mr Campbell; and Mr Campbell brought an action of reduction against Mr Harley and the disponee, to reduce and set aside all those deeds that had been so executed, upon the ground that this provision in the feu to Mr Harley was binding upon Mr Harley, and those who claim under him; that the disposition should have been prepared by Mr Campbell's agent; and next, that not being so prepared, he has a right to set it aside in toto.
My Lords,—The action came before the Court of Session, and there were various discussions upon it. First, they said that Mr Campbell had no interest to enforce the clause in question; and next it was said, that, if he had an interest, still this was an illegal stipulation; that it was contrary to Act of Parliament mentioned in the papers, and contrary to the public polity; that the Act only authorized the taking of the highest feu-duty that could be obtained. I do not exactly follow the argument of one of the learned Judges in that respect. And then it was said, that the form of the action was bad, because, by reducing, you deprive these parties of the estate. Mr Campbell said, I have an interest to pursue this action, because it is very important to me to see in these sub-feus what the amount of the feu-rent is. They answer, You may see that by the disposition. Lord Gillies is of opinion the form of the action was bad; that it ought to have been an action of declarator, and not an action of reduction to set aside this disposition altogether; he doubted whether it was a real burden, or that Mr Campbell could go against a third person. The other Judges were of opinion that Mr Campbell had an interest to pursue, and that the form of action was right; although, I observe, one of the Judges says he considers it really a process of declarator, it was not in that form—it was an action of reduction: and as to his right to pursue, I should state, that Mr Campbell had been applied to, to confirm those dispositions, and had refused, and had proceeded against the parties for a reduction. He came to the Court, therefore, for his own protection, to get a declaration as to what his rights were.
This question is one of very great importance. I understand that the amount of these feus is very large, and the question is, Whether this comes within the maxim, ‘Lex neminem cogit ad impossibilia;’ or whether this is such a real burden that it can be enforced by Mr Campbell against the disponees, to deprive them of the rights they have received from Mr Harley?
My Lords,—Though I am very reluctant, in any of these cases, to delay the parties; still, considering this is a very important case as to property in general, where property of this sort by the law of Scotland can be introduced into a disposition, to bind for all time; and when I
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Appellants' Authorities.—Kames' Elucidations, p. 214.; Kerr, Feb. 10. 1630, (3779.); Shaw, March 8. 1759, (7845.); 2. Stair, 3. 54.; Henderson, Aug. 7. 1760, (10,179.); Hill, July 5. 1774, (10,180.); Creditors of Ross, June 3. 1714, (ib.); Lovat, House of Lords, April 1. 1721; Calderwood's Creditors, July 1730, (10,245.); Allan, July 10. 1780, (10,265.); Stewart, May 18. 1792, (10,232.)
Respondent's Authorities.—4. Stair, 18. 1. 2. 9.; 4. ib. 20. 5.; Sir R. Preston, March 6. 1805, (2. App. Real and Personal); 1. Bell, 30. Note; 1. Bell, 27.
Solicitors: J. Campbell— J. Richardson,—Solicitors.