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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Magistrates of Edinburgh v Horsburgh. [1835] CA 13_571 (27 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0571.html Cite as: [1835] CA 13_571 |
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Page: 571↓
Subject_Process—Superior and Vassal—Interest.—
1. A superior who was found not entitled to claim arrears of feu-duty, in respect he had obtained decree forfeiting the vassal's feu-right in a declarator of irritancy ob non solutum canonem, held not entitled, under a record in which his claim was stated solely for arrears of feu-duties, to demand the rents of the subject from the vassal for the period of the vassal's possession. 2. Interest held due, in special circumstances, on the sum resting owing in name of composition by a singular successor to his superior for an entry.
Sequel of the case reported May 16, 1834 (ante XII. 593), which see. In 1812, the late William Sibbald feued an area of ground in Leith from the Magistrates of Edinburgh, and erected warehouses on it. After his death, which occurred in 1817, when two years feu-duties were already in arrear, the trustees, under a private trust-deed executed by him, made up a title to the subjects, and were infeft. Ultimately, a ranking and sale of Sibbald's whole estate, including this feu, was brought, and a judicial factor was appointed, who, by arrangement with the trustees, came into their place in regard to liability to the Magistrates as to the feu-duty. The Magistrates, in 1822, raised a declarator of tinsel of the feu, ob non solutum canonem, and, having obtained decree, they got the subjects struck out of the ranking. They did not get possession until Martinmas 1824, when they preferred a claim in the ranking for various sums, and particularly—
1st, For a balance of arrears of the feu-duty which had accrued from Martinmas 1815 to Whitsunday 1824, with interest thereon from Whitsunday 1824; and for this they claimed a preference out of the rents drawn from the subject while in the hands of Sibbald's trustees, or of the judicial factor. 2d, For composition on the entry of Sibbald's trustees, in terms of the feu-contract, with interest thereon.
The common agent objected—1st, That as the Magistrates had obtained decree, forfeiting the vassal's right under the declarator of tinsel, they had lost all claim to arrears of feu-duty. 2d, That, from certain special circumstances formerly noticed, there was no liability for the composition, especially after the whole feu was annulled.
A record was closed, and cases were ordered, after which the Court, “in respect of the decree of declarator of irritancy, obtained and extracted at the instance of the Magistrates of Edinburgh, found that they are not entitled to the arrears of feu-duty for which they have made claim in the ranking, and repelled the said claim accordingly, and decerned; found that the said Magistrates are entitled to the composition of £236, 18s. 3d. for an entry to the premises in question; and remitted to the Lord Ordinary to proceed* further in the cause, reserving for further discussion the question
Before the Lord Ordinary the Magistrates claimed preference on the rents of the subject for the sum due as composition for entry, and also interest on that sum, on the ground, that their right to interest arose, apart from any general question, in consequence of the terms of the correspondence of parties, and relative arrangements made. They also maintained, that, in respect of the possession of the subject which had been held by Sibbald's trustees and the judicial factor, the factor must, at least, account for all the rents received by him, and especially since raising the declarator of irritancy. *
The common agent answered, that the debt for the composition was not entitled to any preference on the rents; that interest was not due on the composition any more than on the feu-duties; and there were no specialties to found a claim for it; and, as to the demand of the rents themselves, the record was already closed on the Magistrates' claim, which had been made solely for arrears of feu-duty, and not for rents; and, as it had been repelled as to arrears of feu-duty, it was incompetent to raise the question as to the rents under this record.
The Lord Ordinary “having heard parties' procurators on the remaining points of the cause, found that the Magistrates of Edinburgh are entitled to a preference for the amount of the composition; found, that the plea of compensation maintained by the common agent on the payment of £700 sterling made to the Magistrates, is not properly raised on the present record, and therefore refused effect to it in the present discussion, reserving to the common agent his right to make it good in competent form, and to the other party their defences against the same; found, that the whole claim founded on the possession of the feu by the vassal and his creditors, is made in the record under the description of arrears of feu-duty; found, that in the tenth article of the Revised Objections for the Magistrates, the arrears of feu-duty so claimed are those from Martinmas 1815 to Martinmas 1824, which includes the period from the raising of the declarator of irritancy to the ceding of the possession of the feu by the creditors; found, that the interlocutor of the Court repels the claim made by the Magistrates ‘to the arrears of feu-duty for which they have made claim in this ranking;’ therefore repelled the claim now made by the Magistrates for the rents of the subjects during the abovementioned period; and found no expenses due to either party.” †
_________________ Footnote _________________
* There was another question, also of a special nature, regarding the effect of the payment of £700 on 27th July, 1824, and whether the common agent was entitled to Bet off this payment against the composition now found due to the magistrates. The magistrates objected, inter alia, that the record did not admit of their claim being met by such a plea.
† “ Note.—It is admitted by the magistrates on the record, that on the supposition of their being found entitled to the whole arrears of feu-duty, they must give credit for the payment of £700 sterling made to them on 27th July, 1824, as made to account of these arrears. But the record contains no plea on the part of the common agent founded on that payment; and when the question was raised for th8 first time at the debate before the Lord Ordinary, the effect of that payment, as affording a general plea of compensation, was denied on the part of the magistrates, on grounds which did not appear to the Lord Ordinary to admit of being satisfactorily discussed under the present record.
“In regard to the claim for the rents of the feu, which are admitted to have been drawn by the judicial factor from the raising of the action of declarator of irritancy until Martinmas 1824, it is not contained in the record, at least under that description. The whole claim founded on the possession of the vassal and his creditors until Martinmas 1824, is made under the description of ‘arrears of feu-duty.’ Accordingly, the tenth revised objection, after stating that ‘the whole rents of the subjects—from the date of Mr Sibbald's death to the term when the objectors resumed possession, were drawn either by Mr Sibbald's trustees or the judicial factor’—proceeds in these terms:—‘The claim which in these circumstances the objectors make is, arrears of feu-duty from Martinmas 1815 to Whitsunday 1824.’ And the claim for arrears of feu-duty is explained in the, same way in some passages of the Case for the magistrates. In considering the effect of a declarator of irritancy as extinguishing a claim for arrears of feu-duty, there certainly does appear to the Lord Ordinary to be a very marked distinction between the proper arrears of feu-duty due at the date of raising the action, and which the superior may be presumed, by raising the action, to have abandoned, and the proceeds of the subjects actually drawn by the vassal from the raising of the action until decree is pronounced, and the possession is ceded to the superior. But as the claim is made on this record under the description of arrears of feu-duty, and as the whole claim for arrears has been repelled by the Court, the Lord Ordinary does not consider himself authorized to entertain the question, now raised under a different form of expression by the magistrates.”
Both parties reclaimed, the Magistrates craving interest on the composition, and also payment of the rents of the subjects from the date of the declarator till their entry to possession; and the common agent craving an alteration as to the plea of compensation.
The other Judges concurred.
The Court altered the interlocutor of the Lord Ordinary, “in so far as no interest is thereby found due on the composition; find the Magistrates of Edinburgh entitled to interest on the composition, from and after the 1st day of March, 1820, and decern: quoad ultra, adhere, and find expenses due to neither party.”
Solicitors: Cunninghame and Bell, W.S.—W. Horsburgh, W.S.—Agents.
