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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> His Grace the Duke of Montrose v. Sir W. D. Stewart and Another [1863] UKHL 2_Paterson_1168 (27 March 1863)
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SCOTTISH_HoL
Page: 1168↓
(1863) 2 Paterson 1168
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 11
v.
Subject_Superior and Vassal — Feu Contract — Teinds — Clause of Relief — Assignation —
In a feu contract granted in 1705, the granter “binds and obliges him and his foresaids to warrant the said teinds, parsonage, and vicarage to be free, safe and sure” to the grantee “from all ministers' stipends, future augmentations, annuities, and other burdens imposed, or to be imposed, on said teinds?”
Held (affirming judgment), In an action brought by a singular successor of the vassal against the superior for the purpose of enforcing the obligation, that it was a condition of the feu rights inseparable from the relation of superior and vassal; and that it was transmitted with the lands without being specially assigned. 1
This action was brought by Sir William Drummond Stewart, with consent of Mr. Kellie M'Callum, for the purpose of enforcing against the defender, the Duke of Montrose, an obligation of relief against augmentations of stipend, contained in a feu contract granted by the Marquis of Montrose on 1st January 1705. The obligation was expressed as follows:—“And further, in regard the said Mr. David Graham has payed as great a pryce for the saids teinds, parsonage and vicarage, as for the stock of the said lands, therefore the said James, Marquess of Montrose, binds and obliges him and his foresaids to warrant the said teinds, parsonage and vicarage, hereby disponed to be free, safe, and sure, to the said Mr. David Graham and his said son, and his foresaids, from all ministers’ stipends, future augmentations, annuities, and other burdens imposed or to be imposed upon the said teinds.”
The defender did not dispute, that the obligation was aptly expressed to form a claim for relief against augmentations if the question had arisen with the original parties to it, or if it had been properly transmitted to the pursuers; but he maintained, that it had not been so under the titles by which they acquired the lands. The titles were as follow:—By feu contract, dated 1st February 1705, James, Marquis of Montrose, feued the lands of Braco to David Graham, in liferent, and to James Graham, his son, and a certain series of heirs therein mentioned, in fee; whom failing, to the said David Graham, his heirs and assignees whomsoever. The feu contract contained the clause of relief above quoted.
In virtue of the feu contract David Graham and James Graham were infeft, for their respective rights of liferent and fee, on 23d May 1705.
James Graham having contracted debt, several of his creditors, after the death of his father, David Graham, obtained decree of adjudication against the lands of Braco, viz. Thomas Andrew
_________________ Footnote _________________
1 See previous report
22 D. 755;
32 Sc. Jur. 308.
S. C. 4 Macq. Ap. 499:
1 Macph. H. L. 25:
35 Sc. Jur. 420.
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The titles were further traced down to 1853, when the lands were disentailed and acquired by Sir W. D. Stewart and the other pursuer M'CulIum by purchase.
The Court of Session held, that the obligation was a condition of the feu rights inseparable from the relation of superior and vassal, and transmitted with the lands without being specially assigned.
The Duke of Montrose appealed, maintaining in his printed case, that the judgment of the Court of Session should be reversed, for these reasons:—1. Because the respondents had no title or right to insist for implement of the obligation of relief contained in the feu contract of 1705. 2. That obligation was a personal and collateral one which did not run with the lands, but required to be transmitted by special assignation. 3. It had not been transmitted to or acquired by the respondents, or either of them. 4. In any view, the appellant was not liable beyond the value of the superiority.
The respondents in their printed case supported the judgment on the following grounds:—1. The superior and vassal in a feu right remain reciprocally bound, during the subsistence of the right, to implement to one another the obligations incumbent upon the superior and vassal respectively, in the original charter or feu contract constitutive of the feu, in so far as these obligations affect the subject of the feu, and are of a continuous and permanent character. 2. The superior and vassal in a charter by progress, renewing the grant in the original charter or contract, are understood to adopt, as the contract betwixt them, the original charter or contract constitutive of the right, with all its conditions and provisions, in so far as not expressly discharged or modified in some renewal of the right. 3. The right to enforce, and the liability to fulfil, inter se, the rights and obligations competent to, or incumbent upon, the superior and vassal in a feu right, in terms of the original contract, pass and become competent to, or incumbent upon, the superior and vassal in any charter by progress, by the mere renewal of the right, without any special assignation or other transmission of such rights and obligations. 4. The feu right, constituted by the contract of 1705, betwixt James, Marquis of Montrose, and David and James Graham, being a grant by the Marquis, as superior, to the Messrs. Graham, as vassals, of certain lands, with the teinds thereof, for the full value of the said lands and teinds, the obligation undertaken by the superior “to warrant the said teinds, parsonage and vicarage, above disponed, to j be free, safe, and sure to the said Mr. David Graham and his said son, and his foresaids, from all ministers' stipends, future augmentations, annuities, and other burdens, imposed or to be imposed upon the said teinds,” is an obligation immediately affecting the subject of the right— of a continuous and permanent character—and so transmissible, as betwixt superior and vassal, by a renewal of the feu right, without any special assignation of the said obligation. 5. Assuming such an assignation to be necessary to confer a title upon the respondents to enforce the obligation, the continuous and unbroken series of assignations to writs, and whole clauses thereof, from James Graham and intervening vassals to the respondents, would be sufficient to confer such a title. 6. The feu duty stipulated in the original feu contract and successive renewals of the right, being payable for a grant, inter alia, of the teinds of the lands included in the contract, unburdened with augmentations, the appellant is not entitled, on the one hand, to exact the full feu duty, and to repudiate, on the other, the obligation to free the teinds of all augmentations of stipend. 7. The appellant, and his immediate predecessor, having paid the augmented stipend effeiring to the lands embraced in the feu contract, and now belonging to the respondent, Mr. M'Cullum, from 1800 until 1847, must be held to have adopted and undertaken, rebus ipsis et factis, the obligation to pay such augmented stipend expressly undertaken by their predecessor, James, Marquis of Montrose, the superior in the original feu contract of 1705.
Rolt Q.C., and Shand, for the appellant.—It is not disputed, that in this case the deed of 1705 contained a proper obligation by the appellant's ancestor to relieve the other party to that deed against augmentations, but the obligation has not been transmitted to the respondent. It is not. an obligation which runs with the lands, being collateral to the subject matter of the sale, according to the definition of Lord Cottenham in Maitland v. Horne, 1 Bell's Ap. 1; Breadalbane v. Sinclair, 5 Bell's Ap. 353. Such an obligation, therefore, does not pass by a general clause of assignation of the writs—Menzies' Convey. 616; Ersk. 2, 3, 31. The general clause does not carry a tack of teinds— Grahame v. Don, Dec. 1814, F.C. Nor does it carry a right of warrandice in case of eviction— Hamilton v. Montgomery, 12 S. 349. In Maitland v. Horne, it was also held, that a special assignation is required to carry an obligation by a disponer of lands to relieve the disponee of all future augmentations of stipend: per Lord Campbell in Breadalbane v. Sinclair, 5 Bell's App. 376. So in Spottiswoode v. Seymer, 15 D. 458, it was held, that where the obligation of relief had been granted, and the disponee executed a procuratory of resignation in favour of his son, who was infeft on a charter of resignation, the obligation was not transmitted. It is said, that the case of Lennox v. Hamilton, 5 D. 1357, shews the contrary; but that case proceeded on an erroneous view of the case of Maitland v. Horne, as has been pointed out in later cases. If, therefore, a special assignation was
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The Solicitor General (Sir R. Palmer), and Mure, for the respondents.—The obligation of relief in this contract was intended by the parties to the deed of 1705 to be permanent, and to run with the feu; and it is a condition of the feu contract subsisting in whosesoever hands the estate is found. The feu charter or contract is the proper test of the conditions, and each renewal of the investiture implies the continuance of the conditions in the original disposition or contract—Craig, 2, 12, 8; Ersk. 2, 3, 20. Such is still the law— Threipland v. Rutherfurd, 10 D. 1063; Graham v. Duke of Hamilton. Therefore, on each renewal of the investiture, the parties adopt the original contract unless they specially provide otherwise. The obligation here is available to no one else .but the vassal. There is no reason for holding, that this particular condition has been discharged. In a similar case it was held to exist by reason of the privity of estate— Lennox v. Hamilton, 5 D. 1357. In Maitland v. Horne, 1 Bell's App. 1, there was no relation between superior and vassal, which makes all the difference; and so in Breadalbane v. Sinclair, 5 Bell's App. 353; Spottiswoode v. Seymer, 15 D. 458. An obligation to renounce the casualties of the superiority was held to be real, and to run with the lands, and that is analogous to the present case— Nasmith v. Story, M. 5723; 10,276. So in a case like the present— Wilson v. Agneiv, 9 S. 357. If the obligation is binding on the superior, then it is necessarily available to and enforceable by the vassal, for it was a mutual contract. But even if a title by assignation is necessary, then that title exists in the respondent. Such an obligation passes in a general clause of assignation of writs, which conveys all writs necessary to maintain the right conveyed by the dispositive clause. This is implied in the cases of Hamilton v. Montgomery, 12 S. 349; Graham v. Don, 15th December 1814, F.C.; Renton v. Anstruther, 2 Bell's App. 214.
Cur. adv. vult.
As the feudal relation of superior and vassal still exists between the appellant and the respondent, there is privity of estate between them, and consequently a right in the vassal to enforce against the superior every obligation which, by the terms of the feu contract, entered into the relation as thereby constituted, and which from its nature was intended to accompany the estate of the vassal.
Now the obligation in question, so far as the terms in which it is expressed are material, is plainly intended to endure for the benefit of all persons entitled under the feu contract, that is, of all succeeding vassals. The superior binds himself, his heirs and successors, in the superiority to the vassal, his heirs and successors in the feu. And the nature of the obligation is such as was plainly intended to accompany and follow the feu in its transmissions, for it is an engagement
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The obligation of the superior is for himself, his heirs and successors; that the teinds, parsonage and vicarage, disponed by him to the vassal, his heirs and successors, shall be free from all ministers' stipends, future augmentations, annuities, and other burdens to be imposed upon the said teinds except only such as were then subsisting, and presently payable.
The proposition of the appellant is, that this engagement is personal to the grantee, and stops unless specially assigned, with him and his representatives, but where the original grantee or any succeeding vassal has disponed the feu, he ceases at once to have any interest in the obligation of the superior. What, then, becomes of the obligation? Does it remain with the grantee or his representatives, who have no longer any interest in it, or right to enforce it? or does it, in conformity with the terms of the obligation and the spirit and interest of the contract, accompany the feu into the hands of the succeeding vassal?
The obligation relates directly to the subject of the feu contract and to the enjoyment of it by the vassal, and it is therefore, from the very nature of the engagement, an integral part of the contract, in consideration and return for which, as part of the superior's grant and engagement, the feu duties and other prestations are rendered by the vassal.
It is no answer to say, that the liability of the superior under such an obligation may exceed the whole value of the feu duties. This may shew, that the contract of the superior was originally improvident, but does not affect the legal construction or validity of the obligation.
In principle, therefore, it appears to me to be clear, that the obligation in question is part of the feudal contract, and is transmitted along with that contract.
But little difficulty could have been felt on this point, if it had not been supposed in the Court below, that the decisions of this House in the cases of Maitland v. Horne and Breadalbane v. Sinclair, and the judgment of the late Lord Cottenham, were in favour of the appellant. In my opinion those cases have no application to the present, for in them there was no privity of estate between the contending parties, who did not stand in the mutual relation of superior and vassal.
I must, therefore, move your Lordships, that the decision in the Court below be affirmed.
It is clear on all the authorities, that the benefit of the obligation entered into by the Marquis of Montrose in 1705, whereby he bound himself and his heirs to warrant the teinds free from all future augmentations, has not been duly assigned to the respondent so as to enable him to sustain an action for relief against the appellant as the personal representative of the Marquis. But the question is, whether, as superior, the Duke is not liable without any special assignation of writs. The Lord Ordinary held, that he is not. And the question having been argued before all the Judges, six of them, including the Lord Ordinary, adhered to his opinion and were for affirming his interlocutor, and seven were opposed to it, so that there were seven in favour of the liability of the appellant, and six against it. The result was, that the appellant was declared to be liable. He has appealed to your Lordships, and this House has now to decide in this closely balanced state of the authorities.
The Lord Ordinary and the Judges who concurred with him came to a decision adverse to the pursuer, who is now the respondent, on the ground, that the obligation in question, though entered into in the original feu contract by the superior with the person who was thereby constituted his vassal, was not a condition of the feu right inseparable from the feudal relation of superior and vassal, but a mere collateral engagement entered into by the superior with his vassal when he created the feu right binding only him and his personal representatives.
The seven Judges who formed the majority were of opinion that the obligation in question was validly made a part of the feu contract, so that every succeeding vassal had a right to claim the benefit of it against the superior for the time being in the same way as every successive superior has a right to insist against every succeeding vassal for the payment of the feu duty. Which of these views was right? My impression was, that the Lord Ordinary was right. Certain definite duties attach to the superior, whoever he may be, arising not from special contract, but from the nature of the feudal relation. The superior (as is pointed out by the Lord President) is bound to infeft and to enter the vassal, and to renew the right of every successive vassal according to his right, whether claiming by descent or as a singular successor. On the other hand, certain well known obligations attach, without being expressly mentioned, on the vassal; and on the principle “ cujus est dare ejus est disponere,” the person feuing his land may stipulate for special payments, prestations, and duties to be rendered and performed by the vassal, as the condition of his holding the dominium utile of the land. But I have no authority for saying, that he can annex to the dominium directum, which he retains, an onerous obligation such as that now under consideration, so as to make it attach on the superiority. Before feuing the lands,
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My opinion, therefore, would have been in favour of this appeal. But as I know, that my noble friend near me concurs with the Lord Chancellor, I shall not trouble your Lordships with any further observations. The case is one of great nicety, and though I have shortly stated the grounds on which I thought the minority of the Judges below were right, I readily defer to the opinions of the majority, and of my noble and learned friends who heard the case argued at your Lordships' bar.
I will merely add, that the two cases cited in argument, and which were decided in your Lordships' House, have little or rather no bearing on the question. Neither of them were cases between vassal and superior. Maitland v. Horne merely decided that, where a vendor had entered into a covenant with a purchaser similar to that now in question, a singular successor of the purchaser had no right of action against the representative of the covenantor, unless the right to the covenant had been specially assigned to him. In the other case of Breadalbane v. Sinclair there was, as in this case, a feu contract, but the action was raised, not against the superior for the time being, but against the personal representative of the original granter, who had entered into the obligation. The benefit of the obligation had not been duly transmitted, and the principle established in the preceding case therefore prevailed. These cases are clearly inapplicable to that now before the House.
The solution of the question entirely turns upon the point, whether the obligation to relieve the teinds from augmentations of the ministers' stipend is a mere personal obligation, or whether it enters or forms part of the feu contract. If the obligation is merely personal, it is conceded, that a special assignation of the right to it was necessary, and all the Judges agree, that the pursuer cannot found his title upon any such assignation. On the other hand, if, by the feu contract, the obligation entered into the constitution of the feu, and so became a part of the newly constituted relation of superior and vassal, it would be inherently transmissible by the mere continuance of that relation.
The appellant, however, contends, that the right to enforce this particular obligation does not run with the estate of teind to the vassal,—that it was at the utmost one of the accidentalia feudi, spoken of by Erskine, 2, 3, 11, which the lord could not annex to the feu so as to prejudice his successor, or at all events, not without its finding its way into the feudal investiture.
But what reason is there for saying that the lord, in the original creation of this feu, could be restrained from granting the dominium utile, and reserving the dominium directum, with certain obligations and conditions attached to it, at his free will and pleasure? He was the absolute owner of the subject. His singular successors could, of course, have no reason to complain, because they would take care to ascertain the burdens or obligations belonging to the superiority before they purchased. His heirs would receive the superiority from him with the conditions upon. which he permitted it to descend to them, as he might, if he pleased, have alienated it altogether from them. If the obligation was made part of the feu, in its original creation, then, as according to Craig, quoted by Erskine, 2, 3, 20, “all clauses in the original charter are, in the judgment of law, implied in charters by progress, if there be no express alteration,” it was continued by the several charters of confirmation of the superior, and by the precept of clare constat, by which the feudal estate was transmitted to Colonel David Graham.
The difficulty in the way of construing this obligation to be more than a personal obligation to relieve from augmentation, was strongly urged by comparing it with the clause of warrandice, confessedly a mere personal contract, binding only upon representatives. And it was asked, what difference can be suggested between a warranty of title generally and a warranty against a specific claim being made upon a part of the subject matter of the grant? The answer is, that the two things are entirely different, and therefore incapable of comparison. In the words of Lord Cottenham in the case of Maitland v. Horne, 1 Bell's App. 63, “The nature of such a contract
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It is not therefore by comparing the obligation in question with the contract of warrandice, but by examining it in itself, that its real character can be ascertained. It is contained in the grant by which the feudal relation to the teinds was originally created, and the terms on which they were to be held were permanently arranged. The vassal had agreed to purchase, not the teinds simply, but the teinds subject only to the existing burdens, and free from any future augmentations of them. The exoneration of the teinds from all additional burdens was to be the condition and quality of the subject as between the lord and the vassal. This could only be effected by such an obligation as that into which the lord entered. He could not expressly exempt the teinds from liability to augmentation of stipend, because the liability is imposed by law, and the minister could not be prevented by such a stipulation between the parties from having recourse to the teinds for satisfaction of his stipend. The only mode in which he could give the vassal the benefit for which he contracted was, by annexing an obligation to the teinds, which would accompany them for all future time, and afford them a permanent protection against diminution. And, that this intention might be more clearly shewn, the reason for the obligation is stated to be in regard that Mr. David Grahame had paid as great a price for the teinds, parsonage, and vicarage as for the stock of the lands—in other words, that he had paid an ample consideration for the purchase of the teinds, free from any additional burdens which might be afterwards imposed.
Taking the whole of the feu contract respecting the teinds together, it is substantially a grant of an interest in unincumbered teinds conceived in the terms of an obligation, and is not collateral, but an express condition of the feudal grant transmissible as an essential part of it to the successive vassals.
The question is not raised on behalf of a singular successor. If it had been, it would have been necessary to consider how far the case was decided by the two cases of Maitland v. Horne, and the Marquis of Breadalbane v. Sinclair. The former of these was not a case where the obligation to relieve the teinds from future burdens was contained in the original feudal grant, but it was a sale and disposition of lands with the teinds, made by a vassal, with an obligation to relieve his disponee from future augmentations. The superior had nothing to do with this obligation, and it in no way entered into the relation between him and his vassal. There was nothing remaining in the disponer, in respect of the teinds, to which the obligation could be annexed. It was, to use the words of Lord Cottenham, “a contract perfectly collateral to the subject matter of the sale.” It was therefore necessarily a mere personal obligation not transmissible to singular successors in any other manner than by a special assignation not by virtue of a general assignation to writs, which never operates in itself as a transmission of rights, but merely for the defence of right actually transmitted.
In the case of Breadalbane v. Sinclair the obligation to relieve from augmentation was contained in the original feu charter granted by Lord Breadalbane to James Sinclair; and Lord Breadalbane was a defender in the action brought for the relief stipulated for by the obligation. But Lord Breadalbane had alienated the superiority, and Sir Ralph Anstruther, who had become the superior, was dismissed from the action at an early stage of the proceeding, upon his motion to that effect, and without any opposition on the part of the pursuer. The action, therefore, became virtually a claim by a singular successor of the original grantee, in his mere character of heritable proprietor of the lands, without proof of any special assignation, upon an obligation which, having been disannexed from the superiority, had become personal as to the party by whom it was originally entered into.
These cases, therefore, do not appear to touch the question of an obligation entering into the original constitution of the feudal relation, and affecting the condition of the subject of the feu charter or contract.
Two cases decided in the Court of Session, and relied upon in argument, bear strongly upon the present question. In Wilson v. Agnew, 9 S. 357, “the superior in a feu contract agreed with his vassal, that the teinds due out of the lands feued should be taxed at a certain sum besides feu duty, and bound himself to free the vassal of all teind and public burdens payable furth of the lands in all time coming.” The estate of the superior was subsequently taken up, in virtue of an onerous and mutual entail by the heir, who was the lineal representative of the granter of the obligation, and who took up his estate, including the superiority. And he was held liable to fulfil the obligation as inherent in the feu contract. Lord Balgray said—“The defender, Colonel Agnew, represents the original party to the contract, who was proprietor in fee simple of the estate. The superiority of the land for which the feu duty and teind exemption duty were paid is part and parcel of the entailed estate. By taking up the estate, the defender has right to these annual prestations from the pursuer, and has received them. But no heir of
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The case of Lennox v. Hamilton is of even closer application. There by the original feu charter made in 1737, and granting lands and teinds, the superior bound himself to warrant the feu right from “all future augmentations of ministers' stipends that might affect the teinds above disponed.” A charter of confirmation was granted by the superior in 1778 to a disponee of the original vassal, which declared this general confirmation to be as valid and effectual to all intents and purposes as if the said dispositions and instruments of sasine before mentioned had been hereinbefore verbatim inserted. In this charter the superior's obligation to relieve the vassal from augmentations of stipend was omitted, and the vassal was held bound to relieve the superior from all ministers' stipend. A subsequent charter to the same effect was granted in 1815, and with the same omission. And the vassal was held bound to the same extent as with respect to the charter 1778. In 1798 the lands and teinds came by progress through a variety of singular successors, none of whom entered with the superior, to the pursuer's ancestor, and ultimately, by succession, to the pursuer himself. None of the conveyances in the course of the progress contained a specific mention of the obligations to relieve against augmentation, but all of them contained an assignation to the writs and evidents of the lands, with the whole clauses of warrandice, and other clauses therein contained. The pursuer, who was a singular successor in the feu, brought an action of relief against the superior, founded upon the obligations in the original charter, and it was held, that he was entitled to recover. One of the grounds for sustaining his right was, that the obligation sued upon formed part of the original feu charter, and that it could not be held to be discharged by its having been omitted in the subsequent charters by progress granted by the superior. Lord Fullerton said, “The superior feued out the lands, and made the obligation to relieve from augmentations a part of his obligation as superior. So that, when the vassal came to sell, he must be held to have substituted the purchaser for himself in that original contract, and thus brought every subsequent acquirer in direct connexion with the superior in relation to the obligation of relief. There is good ground for holding, that such an obligation would go with the lands, and that the purchaser would be entitled to insist, that the superior should repeat it in any new charter.”
These cases seem to me to furnish ground for the distinction upon which this case may be decided. When an absolute disposition of teinds is made with an obligation to relieve from burdens, this must necessarily be collateral, and therefore personal, because there is no subsisting relation in the teinds between the parties. But where the superiority is reserved, and the dominium utile only transferred, the obligation originating with and being annexed to the feudal relation at the time of its creation, enters into and forms part of its original constitution, and so passes to each vassal as an intrinsic condition of the subject.
After careful consideration, I have arrived at the same conclusion with my noble and learned friend on the woolsack, that this is a case in which the obligation in question is one of the legal conditions of the feudal grant, and that the interlocutor of the Court of Session is therefore right, and ought to be affirmed.
Interlocutors affirmed with costs.
Solicitors: For Appellant, Loch and Maclaurin, Solicitors, Westminster.— For Respondents, Connell and Hope, Solicitors, Westminster.