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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Magistrates of Perth v Stewart [1835] CA 13_1100 (11 July 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1100.html
Cite as: [1835] CA 13_1100

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SCOTTISH_Shaw_Court_of_Session

Page: 1100↓

Magistrates of Perth

v.

Stewart
No. 346.

Court of Session

1st Division D.

July 11 1835

Ld. Fullerton, Lord Balgray, Lord Mackenzie, Lord Gillies, Lord President.

Magistrates of Perth,     Pursuers.— D. F. Hope— Patton. Malcolm Stewart,     Defender.— Rutherfurd— Ivory.

Subject_Contract—Property—Superior and Vassal.—

The magistrates of a royal burgh disponed part of their ground to a purchaser to be held of and under the king in free burgage, for payment of the burgh maills, &c.; and also to be holden of and under the magistrates in feu-farm, for payment of certain annual feu-duties, and a duplicand thereof at the entry of an heir or singular successor, as use is in feu-farm; an irritancy was provided in the event of two years' arrears being incurred; and the deed contained a procuratory of resignation, but no precept; the purchaser took infeftment, and also acquired a lot, on similar terms, from another purchaser infeft; the magistrates raised a declarator, during which they judicially offered to concur with the purchaser in giving him effectual investiture by feu-holding, if he required them to do so—held, 1. That as the purchaser had got the full use of the ground by an effectual burgage holding, he was liable in the annual payment, duplicand, and other conditions of his right, though these had been inserted as incidental to a feu-holding, and in name of feu-duty, &c., and no valid feu-holding could be given under the existing conveyance; 2. That he was liable for a duplicand under the terms of his right, although his author bad been infeft, and was still alive; and, 3. That the annual payments, &c. could not be declared real burdens, or affecting singular successors, in their present form.

About thirty years ago the magistrates and council of Perth resolved to dispose of part of the burgh muir in lots, taking part of the price as a payment at the time, and converting part of it into an annual payment. The muir was held burgage, and, in the rights which the burgh granted to the purchasers of the lots, they attempted to make each purchaser hold his ground immediately of the king in burgage and of the magistrates in feu. The sales were made at intervals, and lot, No. 12, was bought from the town in 1817, at a public roup, by Malcolm Stewart of Atholebank, in whose favour the magistrates executed a charter or disposition, narrating that the magistrates had been empowered by act of council “to grant the feu-charter underwritten,” and that the purchaser had offered £400 “of price for the said lot, besides the feu-duty and other prestations underwritten.” In the dispositive clause, the magistrates, “for ourselves, and for and in name of the other members of the town council, and whole community of the said burgh, heritable proprietors of the said lot of ground, for and in consideration of the foresaid price, &c. of the yearly feu-duties underwritten, and with and under the conditions and provisions after mentioned, sell, alienate, and dispone, and in feu-farm perpetually demit to and in favour,” &c. The feu-duty stated was forty-six bolls of wheat and forty-six bolls of barley. In reference to the tenure of the lot, and the payment of these duties or prestations, the following clauses were inserted in the charter. The ground was “to be holden of our sovereign lord the King's Majesty, and his royal successors, immediate lawful superiors thereof, in free burgage, fee, and heritage for ever, for payment of the burgh maills, service of burgh, and others used and wont, and that by resignation, in manner underwritten:—and also to be holden of the magistrates and town council of the said burgh, and their successors in office, for themselves, and in name and behalf of the whole community of the said burgh, in feu-farm, fee, and heritage for ever, for payment out of, and for, the said lot of ground, hereby disponed by our said disponee and his foresaids, to the town chamberlain of Perth and his successors in office, for the use and behoof of the community of the said burgh, of the price and value of forty-six bolls of wheat and forty-six bolls of barley, in name of feu-duty, yearly, the said prices and values to be ascertained by the medium of the annual fiar prices of the first sort and second sort of wheat and of barley last struck and fixed for Perthshire preceding each term of payment, beginning the first year's payment of the said feu-duty at Martinmas 1817, for the year preceding, and so forth yearly at the said term in all time thereafter, and doubling the said feu-duty, the first year of the entry of each heir, and of each singular successor thereto, as use is in feu-farm, and that for all other burden, exaction, or demand whatever, excepting the cess or stent, or other public burdens after mentioned.” The charter contained a clause, “providing always, as it is hereby specially provided and declared, and to be insert in the infeftment to follow hereon, that if the said Malcolm Stewart, and his foresaids, shall not make due and punctual payment of the said feu-duty yearly, but shall allow two years thereof to run into a third unpaid, then, and in that case, they shall incur a forfeiture of the said subjects and pertinents hereby disponed, and of such buildings as may be erected thereon; and the said town council shall have power and liberty in that event to take possession thereof brevi manu, without any action or declarator to be raised or executed for that effect, and use the same as the property of the community in all time thereafter, or dispose thereof at pleasure.” It also contained an obligation to infeft, and a procuratory of resignation, but no precept. Sasine was given by one of the bailies of the burgh—the town clerk acted as notary—and the instrument was recorded in the burgh register.

Stewart afterwards acquired other five lots of ground from parties who had purchased from the burgh. These parties had obtained rights similar to that of Stewart, and he took a conveyance from them, in which the same conditions and provisions were inserted, as affecting the right conveyed to him, which were inserted in the conveyance which he received directly from the magistrates. One of these lots was acquired from Patrick Stewart, who had been infeft under the conveyance which he had received from the burgh, and Malcolm Stewart refused to take an entry, or pay a duplicand, Patrick Stewart being still alive. Malcolm Stewart had in the meantime been paying the annual sums due to the town, and stipulated in name of feu-duty, and he continued to do so until Martinmas 1830. He also paid in 1828, but under protest, what was due in name of duplicand on the other lots or portions acquired by him, except that derived from Patrick Stewart. In 1828 the burgh raised an action before the sheriff of Perth to obtain payment of the duplicand on that lot also. The summons subsumed “that, in terms of the foresaid charter, the said Malcolm Stewart, as a singular successor in the said lot of ground, is liable for a duplication of the feu-duty, payable by him for the same, and which fell due for the first year of his acquiring right to the said lot.” It concluded for payment “of the sum of £25, 14s. sterling, as the double feu exigible on his succession to the said lot.” The sheriff assoilzied, and, in an advocation, the Lord Ordinary also assoilzied, and the Court adhered, “reserving to the magistrates of Perth to bring against the respondent such action as they may be advised to institute for fulfilment of the prestations or other stipulations contained in their contract with him as accords, and to the respondent his defences thereto.” Their Lordships at the same time expressed an opinion, that, though the name of feu-duty was an erroneous designation of the annual payments due by Stewart, as there was no feu-holding effectually given, yet Stewart was liable for the annual payments, as he had got the ground which was the true counter-consideration. 1

The magistrates then raised an action in which they set forth a full statement of Stewart's titles, and concluded for declarator “that the whole conditions, provisions, declarations, and obligations, contained in the said several original charters, dispositions, assignations, and conveyances of the same, and infeftments and instruments of sasine following thereon, before mentioned, are binding and obligatory upon the said Malcolm Stewart, defender: Further, That it should be found and declared, by sentence and decree, as said is, that the said yearly payments of the prices and values of the quantities of wheat and of barley, to be ascertained in manner foresaid, payable and exigible at the terms before-mentioned, for the said several lots of ground of the burgh muir of Perth, before specified, amounting in whole to 72 bolls of wheat and 59 bolls of

_________________ Footnote _________________

1 Dec. 18, 1830, ante, IX. 225.
barley, are, to the extent of the several quantities payable for each of the said lots, as above set forth, valid, legal, and real burdens, attaching to, and affecting the said lots respectively.” That Stewart, and any heir or singular successor in the ground was liable for the annual payments, and that if two years were allowed to run into a third unpaid, the ground should be forfeited to the Magistrates: Further, That each heir or singular successor should be liable for a duplicand of the annual payment for the first year after being legally invested with the lot, and such duplicand should be declared a real burden: And further, The annual payments, since Martinmas, 1830, when they were discontinued, should now be paid up, together with the duplicand due out of that lot, which had been derived from Patrick Stewart. 1

The defender pleaded—

1. He was not liable to fulfil the conditions and obligations set forth in the charter. Some of them were absolutely imprestable, such as the payment of feu-duty where there was not a feu-holding, or any thing but a burgage-holding, as fixed by the previous decision. The duplicand was on the same fooling, being expressly stipulated for as the double of the feu-duty, and to be due as use is in feu-farm.

2. It was not enough to change the name of feu-duty into annual payment, and then claim the sums which had been stipulated in name of feu-duty. The counter-part of paying feu-duty was the acquisition of a feu-charter, with all its relative rights, and that had not been given to the defender. The offer of a new title made, pendente lite, was too late; it did not support any of the conclusions of the summons, as none of them concluded to have the defender decerned to renounce his burgage-holding and accept a feu-right. Nor would such conclusion have been well founded, even if it could have been regularly insisted in under this summons.

3. It was impossible to declare that the payments, by whatever name designated, were real burdens; and, though appearing on the face of the titles, that did not alter their nature. 2 It was only as incidental to a feu-holding that they were inserted in the right, and, there being no valid feu-holding, they were not real burdens.

4. If they were not real burdens, they could not affect onerous singular successors. The defender was a singular successor, acquiring only

_________________ Footnote _________________

1 They also concluded for a duplicand of L.19, 16s. 6d., which was afterwards admitted to have been paid. Before closing the record, the pursuers lodged a minute offering to the defender an investiture, either more burgl, or by subinfeudation, and laying the annual payments and duplicand as real burdens on his right.

2 Johnstone, July 21,1759 (4356); Stirling, January 4, 1757; V. Br. Supp. 323; Wylie, December 8, 1803 (10269); Inglis, December 13, 1676 (10237); Sinclair, December 23, 1724 (4128); Hutton, February 13,1725 (9437); Allan, June 19,1780, (10265); Martin, June 22, 1808 ( Dict. v. Personal and Real; Appendix, No. 5. M'Intyre, February 23, 1824, ante, II., 664, or 559 new edition.)
from the vassals of the burgh, in all the lots but No. 12, and he should not, in any event, be subjected except as to it.

5. Even in a proper feu-holding, the defender would not have been liable for the duplicand while his author, who was duly entered, remained alive. And, therefore, he could not be subjected in the duplicand of Patrick Stewart's lot, while Patrick was alive.

6. Upon getting indemnity for the buildings erected on the ground, the defender was willing to cede it to the pursuers.

The pursuers answered—

1. The principal part of the price of the subjects acquired by the defender consisted in annual payments, and the duplicand thereof at the entry of an heir or singular successor. The defender had got a valid real right to the subjects, with the full use and enjoyment of them, and therefore he was liable both in equity and in law to pay the counterpart.

2. Though the annual-payments had been erroneously designed feu-duties, and had originally been contemplated as incidental to a feu-holding, yet that was merely the form according to which the payments were intended to be levied. The substantial consideration for which the payments were undertaken, was the use of the ground, and that was effectually given. But the pursuers had further offered, since the action was raised, to grant a new and unexceptionable conveyance to the defender, infefting him either more burgi, or as a feu-vassal, and inserting the payments as real burdens on the right. And this was all which he could fairly ask.

3. The payments were declared to be due out of, and for the ground, and were inseparably connected with the possession of the ground. The defender could not plead ignorance of them, on acquiring the ground, and therefore they ought, according to the true intention of the parties, to be declared real burdens.

4. The annual payments ought also to be declared to affect singular successors. And as the defender, in those lots which he acquired from the vassals of the burgh, took his right under all the conditions and provisions in favour of the burgh, which were inserted by the burgh in the rights originally granted by them, the defender was equally liable with the original vassals.

5. According to the true import of the conditions qualifying the defender's right, he was liable for the duplicand of lot 5, without waiting till the death of Patrick Stewart.

6. The pursuers could not be called on to take back the subjects, and pay the cost of the buildings erected on them. The defender was as much in fault to accept an erroneous title as the pursuers were to grant it, seeing that the error lay in no defect of right on the part of the pursuers, but in a blunder in conveyancing, with which both parties were equally chargeable.

The Lord Ordinary “reported” the cause on cases. *

Lord Balgray.—I am clearly of opinion that the defender is bound to make

_________________ Footnote _________________

* “ Note.—As this action is brought in consequence of a reservation contained in a judgment of the Court, pronounced in a former question between the parties, and as reference has been made, on both sides, to the views of the Court in inserting that reservation, the Lord Ordinary has thought it right to report the case. He may be permitted, however, at the same time, to express the opinion which he has formed on the points in dispute. The first conclusion of the summons is, ‘That the whole conditions, provisions, declarations and obligations, contained in the said several original charters, dispositions, assignations and conveyances of the same, and infeftments and instruments of sasine following thereon, before mentioned, are binding and obligatory on the said Malcom Stewart, defender.’ The object of this conclusion is, to establish that the various conditions and obligations in the titles are personally binding on the defender. The Lord Ordinary thinks that to this extent the action must be sustained. In the first place, in regard to the lot originally acquired by the defender himself, this hardly admits of being denied. The annual and other payments, whether correctly termed feu-duty or not, certainly formed part of the price or consideration for which the lands were conveyed to him. The only answer attempted by the defender, viz. That these counter-obligations on his part formed the consideration, not of his acquiring the substantial right to the lands themselves, but of his enjoying them by a particular tenure, viz. a feu-holding, which, it is said, he has not got, is in itself inadmissible and absurd in construing a transaction like this; and is besides completely obviated by the offer of the pursuer to give him a feu-holding, if he prefers it. 2dly, and in regard to those lots which the defender has acquired from the original purchasers, the Lord Ordinary thinks that the defender is equally bound in the personal obligation sought to be established by the first conclusion of the summons. There is here no question of the efficacy or inefficacy, against a singular successor, of obligations not made, in distinct terms, real burdens on the lands. Such a question might have arisen, if the defender had acquired, by purchase, an absolute and unqualified right to the subjects, and if an attempt had been made to subject either him or the lands to obligations in their nature personal, contained merely in the titles of the parties, from whom the lands had been purchased. In such circumstances the decisions referred to by him would have been conclusive. But the personal obligations sought to be established against him rest here, not upon the titles of his authors, but upon the titles which he himself has chosen to take from these authors. Though a singular successor, he has taken and now holds the lands under the very conditions and obligations which attached to the original acquirers; and of course the consideration which he paid as a singular successor was calculated accordingly. He is therefore not merely the singular successor of those parties in the lands, but he is their substitute in the personal obligations originally contracted by them, and adopted by himself in his own titles. Upon these grounds the Lord Ordinary considers the defender to be personally bound for the payments and prestations concluded for.

“The remaining conclusions of the summons, viz. That the yearly payments, &c. should be declared to be valid, legal, and real burdens, attaching to and affecting the said lots, and that not only the defender and his heirs, but his singular successors, should be declared to be liable for these annual payments, are attended with much greater difficulty. According to the view which the Lord Ordinary takes of the judgment pronounced in the former case, he does not see how those propositions can be made out. It rather seems to him, that the only ground upon which these
a fair and bona fide implement of his contract. It is quite competent to ingraft any stipulations which the parties choose to agree on in a conveyance of land, whether the holding is feu or burgage. The defender has got an effectual feudal right to the ground, and has had full and undisturbed possession of it. He must make payment of all the counter-stipulations which were truly undertaken by him, on consideration of acquiring the ground. He has got the substantial counterpart of the payments now claimed from him.

Lord Mackenzie.—I am of the same opinion. The defender, for a long period, paid the annual sums which were stipulated in name of feu-duties without objection, and it seems to me, that the pursuer's right to the duplicand claimed rests on the same footing. The one is as justly due as the other, according to the interpretation which I put on the substance of the contract between the parties. In regard to which party is most to blame for giving occasion to the present embarrassment of their rights, I rather think both are equally in the wrong: the defender is just as much so as the burgh. The defender acquired his rights under the belief that he was not entitled to remain unentered; and, if the charter which he took could have literally received effect as both parties contemplated, he would have been bound to enter immediately. Now he has got the full use of the ground, and a feudal right to it, with an offer by the magistrates to concur in rectifying the error which has been committed, only so as not to prejudice their just rights; and I think him bound, by the nature of the transaction and contract which has been entered into, to make payment of the sums concluded for. This Court will compel bona fide implement of the contract of parties.

Lord Gillies was understood to intimate, that he thought the defender could not be subjected in any payment in name of duplicand of feu duty so long as his author, who was entered, remained alive. He would otherwise be worse off than if he had got a feu-holding. His Lordship was not prepared to assent to the doctrine, that all the stipulations could be effectually inserted in a feu-charter.

Lord President.—Before being sanctioned by inveterate practice, it was wrong in principle to lay any real burden in favour of a subject upon the vassal in a burgage-holding.

Their Lordships intimated an opinion, that they could not decern in terms of the conclusions for declaring the yearly payments to be real burdens.

The Court pronounced this interlocutor:—“Find that the obligations for annual payments and duplications thereof upon entry, contained in the defender's titles, are binding on the defender; and, in terms thereof, decern against the defenders for payment to the pursuers of the arrears of annual payments and duplications thereof specified in the summons, deducting the

_________________ Footnote _________________

pecunlary obligations could be held to attach to the lands is, that they were elements of a proper feu-holding, in which character they have been found by the Court to be inept and unavailing; and as the present summons contains no conclusion that the defender is bound to take a title effectually rendering these payments real burdens, but concludes merely to have it found that they do form real burdens as the title now stands, the Lord Ordinary does not think that these conclusions can, consistently with the former judgment, be sustained.”
sum of £19, 16s. 6d., being the duplication for Nos. 20, 28, 29, and 30, of Lot 18, which is admitted to have been paid, with interest on the sums decerned for, from the date of citation in this action: And, in respect of the nature of the title, assoilzie the defender from the remaining conclusions of the action; and find no expenses due by either party.”

Solicitors: W. Murray, W. S.— Gibson-Craigs, Wardlaw, and Dalziel, W. S.—Agents.

 SS 13 SS 1100 1835

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