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Cite as: (1855) 2 Macq 40, [1855] UKHL 2_Macqueen_40, 2 Macq 40

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SCOTTISH_HoL_JURY_COURT

Page: 40↓

(1855) 2 Macqueen 40

Reports of Cases Argued and Determined in The House of Lords.

No. 5

Elmsley, Appellant

v.

Brown and Others, Respondents

1855. 26th March

Subject_Liability for Feu Duty after parting with the Feu. —

The doctrine laid down by the House in Millar v. Small, The Royal Bank of Scotland v. Gardyne, and Jack v. Hay, applied where the circumstances were in some degree different.

Subject_Agreement — Express Terms. —

Remarks by the Lord Chancellor on the necessity of keeping parties to the express terms of their own deliberate agreement, and the danger of sanctioning speculative constructions.

The question was, whether a feuar who, on receiving the feu charter, had granted a personal bond, binding himself and his successors to pay the feu duty, could free himself from liability by transferring the feu to a third party.

In deciding this question the House had to consider whether the doctrine laid down by itself in Millar v. Small ^(a), The Royal Bank of Scotland v. Gardyne ^(b), and Jack v. Hay ^(c), was to be applied where the circumstances were in some degree varied. The Court of Session had decided in opposition to these cases, which, however, were not determined by the House when the sentence in the present case was pronounced.

Mr. Rolt and Mr. Anderson for the Appellant.

The Lord Advocate ^(d) and the Solicitor General ^(e) for the Respondent.

_________________ Footnote _________________

( a) Suprà, vol 1, p. 345.

( b) Suprà, vol. 1, p. 358.

( c) Suprà, vol. ., p. 526.

( d) Mr. Moncreiff.

( e) Sir Richard Bethell.

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[ Lord St. Leonards: Do you deny that this case is governed by Jack v. Hay?]

We do. Lord Colonsay's opinion shows the distinction. His Lordship observes, that “this case differs in some respects from that of Jack v. Hay, and especially in this, that the stipulations in the respective articles of roup are materially different as regards the personal obligation to be granted by the purchaser. The only stipulation on that subject in this case is contained in the 13th article of the conditions of roup; and the material distinctions are these:—1st, The instrument to be granted is not described as a personal bond. 2nd, The parties against whom the stipulation is directed, and by whom the bonds are to be granted, are described as ‘the purchasers and all succeeding heirs and singular successors in the premises.’ 3rd, It is not said that the obligation is to extend to the heirs and successors of any one of the granters. 4th, It is not said that, in any case, the obligation to be granted is to have reference to all future time. 5th, In every case it is to be an obligation, not limited to payment of the feu duties, but extending to performance of the whole clauses and conditions of the articles of roup, several of which are operations to be performed on the lands, and which none but the possessors of the land for the time could perform.” Moreover, we have commenced an action to have the obligation reduced and set aside.

[ Lord St. Leonards: Then the dismissal of this Appeal will not affect you.]

An element occurred in the former cases not found here; namely, a concurrent obligation of service. In Jack v. Hay the obligation was contained in a separate instrument, and that circumstance was relied

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upon in the Lord Chancellor's opinion. Here the obligation is in one instrument, and it is an obligation of a feudal character, which cannot subsist where the feudal relation has been extinguished.

Lord Chancellor's opinion.

The Lord Chancellor ^(a):

My Lords, even if there had not been the decisions by your Lordships in Millar v. Small, Jack v. Hay, and Gardyne v. The Royal Bank of Scotland, I confess that this is a matter upon which I could not honestly have said that I entertained the least doubt in the world.

It is most important that parties should be taught that they must frame their contracts precisely to carry into effect what they intend. It is neither convenient nor seemly that parties should frame their contracts in terms distinctly meaning one thing, and then call upon the Courts to interpret them as meaning another thing.

The words of the bond here are “I bind and oblige myself, my heirs, executors, and successors whomsoever, to content, pay, and deliver to” certain persons “as trustees aforesaid, and to such other trustees as may hereafter be assumed into the said trust, and to their assignees, or to any person having authority from them to receive the same, the foresaid sum of 375 l. 8 s., in name of ground rent or feu duty, at the terms following.” Now, that these words bind this gentleman himself and his heirs is perfectly obvious.

His answer is this, “I gave this bond in consequence of a stipulation in certain articles upon a sale by roup, whereby I was bound to give an obligation, but not such an obligation as this. Therefore,” he says, “I ought not to be called upon to pay the sum in dispute.”

_________________ Footnote _________________

( a) Lord Cranworth.

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Now, whether the obligation that he has given is more extensive than he was bound to give is not the question now before your Lordships' House. That point must be decided in a suit, which, I understand, is already instituted in the Court of Session; and your Lordships' decision in this case will not at all affect the rights of Mr. Brown, if he have any rights, in that suit; all that your Lordships have to do is to see whether, construing this bond in the terms in which it is framed, Mr. Brown is or is not liable for the payment of this money.

It is admitted that he is liable unless this bond is to be taken as incorporated with the articles of roup. In the first place, I think, there can hardly be any doubt whatever that the bond cannot be so construed. The document speaks for itself. The articles of roup are stated as the reason which induced him to enter into this contract; not that the articles of roup are in any manner incorporated with it; therefore they cannot in any way be brought in to construe the words which the obligor has himself chosen to use. If I were bound to say whether the articles of roup did demand such a contract, I would beg leave to say that I do not assent to the proposition that the articles of roup would have been satisfied by a contract short of this. The Solicitor General has very truly said, “You might have contracts framed in that way in analogy to what is very common in England. It is a very common thing on the sale of an estate, where a party covenants for the production of the title deeds, to enter into a stipulation that that covenant shall no longer be binding if the estate should be sold, and that the new purchaser shall give an equivalent covenant by way of substitute.” All that your Lordships can say is, that there is no provision at all of that sort in this bond. There is an

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absolute covenant to pay this ground rent; and I am of opinion that it would be most dangerous if your Lordships were to interfere with the contracts of parties and the language which they use, and were to speculate upon anything so wide as this, and to hold that though they have said in terms which cannot be misunderstood that they would pay the ground rent, still they are not liable under this bond to pay it ^(a). Therefore, I think that the Appellants have made out a ground for reversing this interlocutor.

The House will dispose of this case with the less hesitation, because, in truth, it is not an appeal from a decision of the Lords of Session after they had become acquainted with the view which your Lordships take of these cases ^(b). It was an interlocutor of the Court of Session pronounced before they had the benefit of knowing your Lordships' decisions. It is very true that in those cases there was the circumstance of the service; that may be one additional argument in those cases, but it can be none as it regards this case.

Lord St. Leonards' opinion.

The Lord St. Leonards:

My Lords, I am entirely of the same opinion. In the case of Millar v. Small, although I thought it right to rely upon the cautionary obligation, as that would put all doubt at an end, yet I had a very clear opinion, which I took the liberty of expressing in this House, upon the general doctrine. To that opinion I still adhere; and I am of opinion that in this case the bond is general, and will continue in force for all

_________________ Footnote _________________

( a) See suprà, vol. 1, p. 679, where, in Clarke v. The Glasgow Assurance Company, the Lord Chancellor enforces the necessity of “leaving parties to use their own language, which the Court is to interpret.”

( b) Millar v. Small, The Royal Bank of Scotland v. Gardyne, and Jack v. Hay.

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time, notwithstanding the supposed doctrine in Scotland.

My Lords, the only argument which we have heard in this case is this, that you are to import into this bond the articles of roup. I cannot admit that that should be done; nor would the importation of them into the bond at all meet the intentions of the parties. The bond itself is in these words, “And whereas, by the articles of roup under which the said piece of ground was purchased, it is incumbent on me to grant the personal obligation under written,” not something else; but the obligor here puts his own construction upon the bond; and he tells you that what he is bound to do is not what is in the articles of roup, but what is under written.

Now, if your Lordships look at the articles of roup, you will find that the intention clearly was that every singular successor should come under the obligation within a certain time. Now, how was that to be executed? The Solicitor General says that we are to put the same construction upon this bond as if there had been first of all a general obligation, and then a proviso determining that obligation upon the successor entering into a new bond. That would have been a very reasonable construction to put upon the articles of roup, no doubt; but how can we put that construction upon this bond? Where is there a single word within the four corners of this bond which imposes any obligation upon any successor to enter into such a bond as is stipulated for in the articles of roup? Therefore, if we were not to give to the general words a general expression; if we were not to extend the intention of the bond as far as the words themselves go, that is, generally, where would you ever get for this seller another security? You say that this bond has ceased because he has transferred

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the land; but the land, at all events, was not to be transferred so as to get rid of the obligation, unless the successor did enter into a bond; he entered into no obligation for him to do so at all; and all that could have been said upon an equitable ground would have been this, that if you had not entered into a bond for the successor to conclude a real bonâ fide purchase, to answer these obligations, (and therefore you had a right then to have them delivered up,) you would then have tried the general equity, as it were-that is, whether the articles of roup did not mean that the general obligation into which you had entered was to cease when you had sold, and when you had obtained a purchaser to enter into the obligation. But you have done no such thing; you have desired the one party to cease without attempting to substitute any other party. You have not, therefore, attempted to perform your own obligation, nor attempted to perform that which is relied upon, namely, the articles of roup. The effect, therefore, is, that it is not a fair point to raise, for it is attempting to ask this House to decide contrary to the clear words, and, I must say, contrary to the clear intention of the instrument, in order to defeat the obligation and the very articles of roup upon which you found your equity, and upon which you wish the House to decide.

My Lords, I am clearly of opinion that there is no foundation for that distinction; that the cases decided in this House rule this case; and that the party has no foundation for an Appeal Upon that ground, I think that the Appeal must be dismissed with costs, not merely looking at it with reference to the state of the law, but upon the ground which I have stated; if the law had been otherwise, I should have thought this not a proper mode of relieving the party; that is to say, if, by the true construction of the instrument,

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it had been confined to the particular period of the enjoyment, there ought to have been a new instrument tendered to carry on the obligation by the successor; and that not having been done, I think that the Appeal should be dismissed with costs.

Mr. Rolt: Your Lordships find us entitled to the expenses in the Court of Session?

Lord Chancellor: Yes.

Lord St. Leonards: If the parties desired it, the House would have no objection to add the words “without prejudice to any pending action.” I do not think it necessary.

Lord Advocate: My Lords, I am very anxious that there should be that reservation in regard to the pending action.

Lord Chancellor: The cause is remitted back, but without prejudice to any action which the Respondent may be advised to institute.

Interlocutor reversed, but without prejudice to any Action of Reduction which may now be pending in the Court of Session between the parties.

1855