Scottish Court of Session Decisions

Subject_1 IMPLIED CONDITION.
Subject_2 SECT. VI.

Effect of failure of the end in view in granting a deed.

Sir James Campbell
v.
The Purchasers of the Estate of Mar

Date: 8 January 1745
Case No. No 32.

A superior feued lands for payment of a feu-duty, and at the same time granted to a vassal an annuity equal to the feu-duty, and to compensate it, in a certain event. The vassal having afterwards acquired right to the feu-duty, the annuity was found still to be exigible.

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In the year 1628, John Earl of Mar, who held the lands of Gargunnock, taxward of the Crown, feued out the same to Arthur Erskine his son, for the feu-duty of L.81 Scots, and, at the same time, granted him an annuity of the like sum on the lordship of Alloa, in which grant was a clause, “suspending the payment of the said annualrent until the time, and ay and while it should happen, the lands of Gargunnock, &c. to fall and become in his Majesty's hands, by reason of ward, non-entry, or otherwise.” And by another clause, it is provided, “That during the time of not ward, &c. the hail force and effeet of the said infeftment, and all payment in virtue thereof, should be simpliciter suspended, and the said infeftment should have allenarly force during the said time of ward and non-entry, for compensation's cause of the said feu-mail and duty, during the space foresaid;” and the Earl thereby granted a perpetual discharge of the feu-duty.

On the forfeiture of the Earl of Mar, Sir James Campbell of Ardkinglass, proprietor of Gargunnock, expede, in virtue of the clan act, a charter under the great seal, of the lands of Gargunnock, to be held as the Earl of Mar had held them, and of the said annuity, and obtained a decree of the Commissioners of Enquiry, 17th November 1723, finding, “That he was entitled to the annualrent or annuity of L.81 Scots, out of the lordship of Alloa, and that the estate of Mar should be sold, subject to the payment thereof, from the time of the purchaser's entry to the estate, and in all time coming.”

In the minute of sale entered into between the Commissioners and purchasers of the estate of Mar, there is this clause, “Likeas the said Mr James Erskine and his foresaids, are and shall be burdened with the payment of L. 81 Scots yearly, from and after the term of Whitsunday 1724, and in all time thereafter, to Sir James Campbell of Ardkinglass, to which he is entitled by our decree passed in his favours, bearing date 17th November 1723, or at least to free and relieve the said Sir James Campbell of the like sum of feu-duty, payable to the late. Earl of Mar for his lands of Gargunnock, at the hands of all persons having or pretending right thereto, and that for all years bygone and in time coming, and in satisfaction and compensation to the said Sir James Campbell, of the said annuity of L.81 Scots, payable by the said late Earl to him.”

Sir James insisted in a poinding of the ground, in which the Lords, 14th November 1744, “Found that the lordship and estate of Alloa was subject to the annuity of L.81 Scots, payable to the pursuer, and decerned.”

Pleaded for the purchasers, in a reclaiming bill. That they did not think it imported them to give the Court much trouble about the first part of the interlocutor, since they admitted the annuity did, in certain events, and sub modo, affect the estate of Alloa; but they were obliged to apply against the decerniture in the poinding of the ground, because, by the original constitution of the annuity, it was so connected with the feu-duty of Gargunnock, that when the one was not due, the other was not exigible; and therefore Sir James being now free from the payment of the feu-duty, had no claim to the other, which was granted only to serve in compensation thereof.

The decree of the Court of Enquiry, neither did nor could alter the nature of the right; it must be understood secundum subjectam materiam, Sir James was decreed a creditor, and the estate was ordained to be sold, subject to his claim; this and no more was the import of the decree, aad so the Commissioners understood it, as was plain from their bargain with the purchasers, who were most onerously so, having paid a full price, and that on the credit of the act 6th, anno 4to, Geo. I. by which purchasers are declared free of all claims but such as shall have been ascertained by the trustees. This exception could not benefit the pursuer, because the decree had been so explained as to be perfectly consistent with the minute of sale: Were it not so, it was inherent in the nature of a sovereign court to have the power of reviewing, explaining, or altering their own sentences; and it was apprehended no decree of the Court of Enquiry was final, till the same was executed, by granting a debenture, putting the party in possession of the estate, or selling it subject to the claim, according to the different circumstances of the case: The Court therefore did optimo jure explain their former decree, by their deed in the minute of sale.

2dly, No decreet of poinding the ground could be pronounced, because the pursuer had no title to found it upon. A decreet of any Court could not be a title, and his infeftments were clogged with the condition of the annuity not being exigible, when he was free of the payment of the feu-duty. It was true, that the charter expede by him upon the Earl's forfeiture was pure; but the Lords had found, 15th July 1738, “That the act of Parliament for encouraging vassals, &c. was sufficient no warrant to the Exchequer for granting that charter.”

Answered, It is admitted the annuity was not intended to be exacted, except when by the ward or non-entry of the superior the feu-duty fell to be payable; in other cases, it was to compense the feu-duty, not that the two rights were to compense each other, for that was impossible, but that the sums should compense as they became due; and therefore, if either of these claims were alienated, there could be no compensation, and the other would be exigible. Suppose Gargunnock to have purchased his own feu-duty, he would still have right to the annuity; and this is exactly the case: Sir James, by claiming on the act of Parliament, has acquired the feu-duty; and it were to rob him of the reward of his loyalty, to take from him the annuity.

The purchasers were not ignorant of the decree of the Court of Enquiry, since reference is made to it in their right; or if they had been so, it was their own fault; for as the trustees had power to determine what should be burdens upon estates, no purchaser could be safe, without looking into the records of that Court. The interpretation sought to be put upon it is unintelligible; for what sense could there be in finding the annuity a burden on the estate, if, according to the petitioner's pleading, it was become extinct by the extinction of the feu-duty. Besides, not only is it decerned for in time coming, but the arrears are so from June 1715, when, according to the petitioner's argument, there could be no claim for arrears.

The respondent knows not how the minute of sale has been made up; but the Court could not, by any private deed between them and the purchasers, alter his right; and, if they had power of altering their interlocutors, which is denied, this ought to have been done causa cognita, and Sir James should have been cited and heard.

2dly, The pursuer's infeftments are a sufficient title to insist in this action, and the clauses in gremio can be no bar, now that the condition is purified. The respondent cannot imagine what further should be necessary; a declarator of the purification is not so; but, if the condition is urged in defence, this may be relied upon: But here there actually is a declaratory sentence in the decree of the Court of Enquiry, and also there is one of the Court of Session, who, in a former process, found this to be a pure and perpetual burden; so that there can be no pretence of defect of title.

The Lords adhered.

The interlocutor finding the annuity a pure and perpetual burden, had been pronounced in a process from which the defenders were assoilzied, as being raised without a title. This gave occasion to a debate in this cause, whether the said interlocutor were a res judicata or not, which was not determined, the Court having proceeded on the merits of the cause, taking also into consideration the decree of the Court of Enquiry, on which they laid great stress.

Act. J. Campbell, jun. Alt. J. Macleod. Clerk, Kilpatrick. D. Falc. v. 1. p. 41.