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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Preston and Others v. Magistrates of Edinburgh [1870] ScotLR 7_291 (4 February 1870) URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0291.html Cite as: [1870] SLR 7_291, [1870] ScotLR 7_291 |
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Page: 291↓
By feu-contract dated in 1757 the Magistrates and Council of the City of Edinburgh feued certain lands to the pursuer's predecessors. In narrating the subjects of the feu, the lands are specially set forth in the deed as to be holden of the city, “with the houses and planting built and planted, or to be built and planted thereupon.” There is a clause of warrandice in the feu-contract, under which the Magistrates undertake to free and relieve the vassals and their successors “of all teinds, ministers' stipend, king's cess supply, and other public burdens, which do or may affect the same now and in all time coming.” There has been some building on the land since the date of the feu-contract. Held—in a question as to the import of the clause in the feu-contract, and in accordance with the judgment of the Court in the case of Cunningham—(1) that the defenders were bound to relieve the pursuers of augmentations of stipend; (2) that under the term “other public burdens” poor-rates fell within the clause of warrandice; (3) that in the circumstances it must be held to have been in the contemplation of parties that houses would be erected on the lands, and therefore that rating on houses, as well as on lands, was to be held embraced within the clause, not withstanding the date of erection.
Question — How the clause would be construed if the result of building on the lands should be that the assessment for poor-rates equalled or exceeded the value of the feu-duty?
This is a question between Sir Henry Lindsay Preston of Valleyfield and Others, proprietors of 9 acres of ground in the parish of St Cuthbert's, feued off by the defenders in 1757, and the Magistrates and Council of the city of Edinburgh. The pursuers seek to be relieved (1) of all teinds, ministers' stipend, cess, and other public burdens, including poor-rates, payable for said lands, or out of the teinds thereof; (2) of the claim for underpaid stipend, and interest due thereon, brought out against them at the instance of the over-paying heritors in the parish of St Cuthbert's, and claim repetition from the defenders of the stipend they have paid to the ministers of said parish, and of the poor-rates, cess, anti other public burdens paid by them and their predecessors, the vassals in the lands. The following are the material statements of the pursuers:—
By feu-contract, dated 14th September 1757, entered into by the Lord Provost, Bailies, and Council of the city of Edinburgh, on the one part, and George Lindsay, depute clerk of the said city, on the other, the said Magistrates and Council of said city sold, alienated, and in feu-farm disponed to the said George Lindsay and Christian Tytler, his spouse, and longest liver of them two, in conjunct fee and liferent, for the said Christian Tytler, her liferent use allenarly, and to the children procreated or to be procreated between them in fee, whom failing to the said George Lindsay, his own nearest heirs and assignees, All and Whole the 9 acres of land or thereby, part of the lands of Saint Leonard's, lying within the barony and regality of Canongate, parish of Saint Cuthbert's, and Sheriffdom of Edinburgh, the avenue or great road leading thereto, and the first mentioned stripe or bit of ground described in the conclusions of the Summons in this action. To be holden of the said Magistrates and Council, and their successors in office, as superiors, in feu-farm, fee, and heritage for ever, for yearly payment and delivery to them, or to their treasurers, collectors, or chamberlains, in their name, for the use and behoof of the council and community of the said city, of 5 bolls of wheat, and 12 bolls 2 firlots of barley, betwixt Christmas and Candlemas yearly, to be accounted for and rated, both wheat and barley, conform to the highest fiars for the shire of Midlothian, in name of feu-duty, and further paying and delivering to them and their foresaids the half of the said feu-duty, being 2 bolls 2 firlots of wheat, and 6 bolls 1 firlot of barley, or the prices of the said wheat and barley, conform to the highest Midlothian fiars, at the end of each twenty-fifth year in all time coming, as therein specified, and that in full of all claims and demands which they or their successors could ask or claim for the entries of heirs or singular successors, or for compositions on that account, and in full of all other demands, burdens, or services which could be exacted or demanded furth of the said lands and produce thereof in time coming, but always under the restriction and thirlage of the said lands to the Canonmills, without prejudice to claim an exemption from the said thirlage in virtue of the discharge and renunciation from James M'Dougall, proprietor of the so mills, narrated in the said feu-contract.
“The said feu-contract contains a clause of warrandice and obligation by the Magistrates and Council of said city, in the following terms:— ‘Which feu-contract and lands hereby feued, with the infeftment to follow hereupon, the said Magistrates and Council bind and oblige them and their successors in office to warrant, acquit, and defend, to the said George Lindsay and spouse, and their foresaids, from all and sundry incumbrances and grounds of eviction whatever, at all hands, and against all deadly, as law will, and to free and relieve the said George Lindsay and spouse, and their foresaids, of all teinds, ministers' stipend, king's cess supply, and other public burdens which do or may affect the same now and in all time coming, excepting from the said warrandice the astriction and thirlage of the said lands to the
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Canonmills.’ By said contract the Magistrates and Council further became bound to grant ‘a valid and formal charter of the premises.’ “This charter, in which the said original feu-contract is narrated, contains a clause of warrandice and obligation for relief of teinds, ministers stipends, and other burdens which then affected or might affect the lands, in these terms:—Which lands hereby feued, with this our charter thereof, and infeftment to follow hereupon, we bind and oblige us and our foresaids to warrant, aquit, and defend from all and sundry encumbrances, and grounds of eviction whatever, at all hands, and against all deadly, as law will, and to free and relieve the saids Agnes Lindsay and William His-lop, and their foresaids, of all teinds, ministers stipends, king's cess supply, and other public burdens which do or may affect the same now and in all time coming, excepting from the said warrandice the astriction and thirlage of the said entailed lands to the Canonmills.’ Mrs Agnes Lindsay or Preston and William Hislop were infeft on this feu-charter, conform to instrument of sasine in their favour dated the 4th, and registered in the Particular Register of Sasines, at Edinburgh, 15th October 1793.”
After setting forth the various transmissions of the said 9 acres of land, and the titles under which they are held by the pursuers, they make the following statements:—
“No teind has been paid by the pursuers or their predecessors, the vassals in the said 9 acres or thereby of the lands of St Leonards and others, which were feued by the Magistrates and Council of the city of Edinburgh to George Lindsay in 1757, nor was any demand ever made against the pursuers or their predecessors, the vassals in said lands, for ministers stipends out of these subjects until lately.
“In or about the year 1819 a process of augmentation, modification, and locality, was raised at the instance of the then ministers of the parish of St Cuthbert's, in which the said lands are situated, against the heritors and others interested in the teinds of the said parish, under which augmentations of stipend were granted to both the ministers by the Court of Teinds on 24th January 1821. A scheme of locality of the stipends, as augmented, was thereafter approved of by the Court, as an interim rule of payment of the stipends, but no part of the stipend was at this time allocated on the said 9 acres or thereby of the lands of St Leonards belonging to the pursuers.
“In or about the year 1859 the said interim scheme of locality, which had been acted on from the time it was approved of, and formed the rule according to which the ministers uplifted their stipends, was objected to by the common agent in the process of locality, and a rectified scheme was thereafter prepared, in which the teinds of the pursuers' lands were now localled on for stipends to the extent of their value as brought out in that process, in respect neither the pursuers nor their predecessors, the vassals in said subjects, had heritable rights to their teinds. By this scheme there was laid on the teinds of the pursuers said lands 10 bolls, 1 firlot, 3 pecks, and 3–4ths of a lippie of meal of stipend to the ministers of said parish.
“The pursuers gave in objections to the said rectified scheme of locality, and founding on the obligation by the Magistrates and Council of the city of Edinburgh for relief of teinds and stipends contained in the feu-contract and charters of their lands, they claimed to have the above stipend which was laid on their lands allocated on the teinds of the lands in the parish belonging to the city. To these objections answers were lodged for the Magistrates, in which, besides denying that the city was liable in relief of the stipends now laid on the pursuer's lands as claimed, it was maintained that the effect of the obligation contained in the charters of the lands could not be competently determined in the process of locality.
“In consequence of the opposition thus offered on the part of the Magistrates to the pursuers claim of relief being disposed of in the locality, and as it did not appear that there were any lands in the parish belonging to the city, the teinds of which were not previously exhausted for stipend, the pursuers did not insist further in their said objections. The rectified scheme was thereafter approved of as a final locality by an interlocutor or decree of the Court of Teinds, dated 4th February 1864.
“By a state of accounting among the heritors of the said parish for over and under payments of stipend under the said interim scheme of locality prepared by the Clerk of the Court of Teinds under a remit from the Court, it was inter alia brought out that the pursuers and their predecessors are chargeable with under-paid stipends to the amount of £401, 11s. 3d. of principal, which, with periodical interest to 5th April 1864, it was brought out, amounted to £829, 1s. 6
d., and that sum has been claimed from the pursuers by those heritors or their representatives who were over-payers under the interim scheme of locality. 3 4 “By said state of accounting it is brought out that the proprietors of the lands of Dean in said parish had over-paid stipends allocated on their lands by said interim scheme, to the amount, with interest to said 5th April 1864, of £4583, 14s. 4
d., and Lieutenant-Colonel Alexander Learmonth of Dean claiming right to that sum, consisting, as alleged, of stipend over-paid by himself, or by others who have, he alleges, assigned their claims to him, has raised an action in the Court of Session against the pursuer Sir Henry Lindsay Preston, concluding for payment of £215, 9s. 5d., as the share, with interest to said date, of the under-paid stipend, applicable to the said 9 acres or thereby of the lands of St Leonards, to which he claims right as an over-payer, or as representing over payers under the said interim scheme of locality. The pursuer, Sir Henry Lindsay Preston, and the other pursuers, are also threatened with actions at the instance of the other over-paying heritors, or their representatives, for under-paid stipend in said parish. 3 4 “Since the said rectified scheme was approved of as a final locality, the pursuers have paid to the ministers of said parish the stipend allocated on their lands by said final scheme. Converting the victual into money, according to the fiars prices of the county of Edinburgh, as provided for in the decrees of the Court of Teinds, the stipend chargeable against the pursuers for their said lands, and paid by them on or about 19th April 1865, amounts, for crop and year 1864, to £7, 4s. 10d.
“In or about the year 1861 the two ministers of the said parish of St Cuthbert's raised a further process of augmentation, modification, and locality against the heritors and others interested in the teinds of said parish, and augmentations were again granted to both ministers, to commence with the second half of crop 1861. A scheme of locality of the
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stipends as augmented was thereafter made up, and the same was approved of by the Court on or about 9th March 1866 as an interim scheme. “By this interim scheme the stipend payable for the said 9 acres of the lands of St Leonards was raised from 10 bolls, 1 firlot, 3 pecks, and
ths of a lippie of meal, to 10 bolls, 3 firlots, 1 pecks, and 2 3 4 th lippies of meal, and 1 firlot, 2 pecks, and 2 1 8 th lippies of barley, the augmentation thus being 1 firlot, 2 pecks, and 2 1 8 th lippies of meal, and a like quantity of barley. Under this interim locality the pursuers have been called on to pay, and on or about 10th April 1866 paid, the following sums, viz., for stipend for crop and year 1865, the sum of £10, 9s. 3d., and for the augmentation of stipends for crops and years 1861, 1862, 1863, and 1864, the sum of £2, 16s. 9d. 1 8 “The pursuers, and their predecessors and authors, in whose right they now are, have paid the poor-rates, burgh cess or stent, county land-tax, and other public and parish burdens for the said 9 acres or thereby of the lands of St Leonards and other subjects, for the years from 1826 to 1865 inclusive. These various rates for that period, with interest to Whitsunday 1866, amount, conform to state thereof produced with the Summons, to the sum of £489, 15s. 3d.”
The defenders maintained the following pleas in answer to the action:—
“On a sound construction of the clause and obligation of the feu-contract and feu-charter, the defenders are only bound thereby to relieve the pursuers of burdens existing at the date of the feu-contract, and not of burdens which supervened subsequent thereto.
“In particular, the defenders are not bound to relieve the pursuers of augmentations granted, of stipend allocated, or of taxes imposed since the date of the feu-contract.
“The pursuers not being proprietors of the teinds, but possessing and intromitting therewith without any title, are bound to pay the stipend allocated from the teinds intromitted with by them, and have no claim for repayment of such stipend.
“The pursuers not having paid the alleged under-payments of stipend and interest, and not being liable in payment thereof, in respect they are neither proprietors nor in bygone years intromitters therewith, they have no claim against the defenders for repayment.
“The pursuers not having paid the poor-rates, cess, and other taxes claimed, and not being in right of the parties who paid the same, have no claim for repayment thereof, and in no view is interest due, repayment never having been demanded till the present action was raised.
“Even supposing a debt to be due by the defenders to the pursuers, in so far as such debt, whether principal or interest, was incurred prior to 1st June 1833, the pursuer can only claim, and the defenders can only pay, such debt by delivery of bonds and coupons, in terms of the Act 1 and 2 Viet., cap. 55.”
The Lord Ordinary ( Jerviswoode) pronounced the following interlocutor:—
Edinburgh, 9 th November 1869.—The Lord Ordinary having of new heard counsel, and made avizandum, and considered the whole process, with the state of specific sums, repayment of which is claimed by the pursuers, which forms No. 312, with the Note of Objections thereto, No. 316 of process, Finds that the pursuers are entitled to obtain relief from the defenders of payments made by them—1st, on account of augmented stipend; 2d, of the poor's rates, whether payable in respect of the lands held by them, or of the houses now erected thereon; 3d, of stent, land-tax, cess, rogue-money, and other public burdens so far as paid by them, or by parties whom they represent, as set forth in the said state No. 312 of process, with legal interest on the several sums paid as aforesaid, so far as the same has accrued since the date of the present action, and before further answer appoints the cause to be enrolled with a view to such inquiry by remit to an accountant, or otherwise, as may be necessary for the ascertainment of the precise sums of which the defenders may, under the conclusions of the summons, be bound to relieve the pursuer, reserving meanwhile the matter of expenses.
Note.—Questions of difficulty, as the Lord Ordinary thought would probably be the case, have now arisen here, and with these he has dealt in the present interlocutor, so far as it seemed to him to be practicable, without further investigation. Any such investigation would, however, probably involve considerable trouble and expense to the parties, and the Lord Ordinary has therefore thought it right to proceed so far in the determination of certain general points of leading importance, which, as it appears to him, must bear materially on the extent and character of any investigation which may ultimately be found necessary.
“The parties have hitherto conducted the litigation with an apparent desire to obtain a judgment regulating their interests in an authoritative way, without incurring unnecessary litigation or expense, and the Lord Ordinary trusts that the points to which the present interlocutor relates, when finally determined, may serve as a guide to a comparatively simple ascertainment of the pecuniary claims which may be competent to the pursuers.”
The defenders reclaimed.
Watson and John M'Laren for them.
Solicitor-General and Webster in answer.
At advising—
These judgments proceed on the construction of
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The second question is one of greater importance and difficulty,—I mean that relating to the poor-rates. Part of this ground is now covered with valuable buildings, and probably the entire nine acres may before long be built on. The rental derived from these buildings, we are told, is several hundreds a-year; it may rise to as many thousands; and the amount of the poor rates—always keeping in proportion to the real rent—is said even now nearly to equal, and may ultimately far exceed, the amount of the feu-duty. Further, these operations are the work of the vassal, resulting in his own great profit, without the chance of gain to the superior, and, if the pursuers prevail, to his loss. It is contended that the clause in question cannot receive a construction which should lead to such a result. Now, we may assume with regard to this clause, in the first place, that it extends to poor-rates. That has been conclusively held in the case of Scott v. Edmond and Others, that a clause binding the granter to relieve of public burdens implies an obligation to relieve of poor-rates, and that the Act of 1845 is not to be held an Act imposing a new legal obligation; upon the contrary, the regulation makes it not so. Therefore, whatever may be said on that matter, I hold that to be the result. I think we may also assume —because the words seem to me to lead to no other result—that the clause was not limited to existing burdens, but extends to those that maybe imposed in future; and therefore, reading the clause in the light of decisions, and applying its own words, I think we must hold that the superiors here, the Town of Edinburgh, bound themselves to relieve the vassal of poor-rates, not only then existing—
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The question which remains is, whether that obligation extends to the full amount levied on the rental, as increased by the vassal's operations. Now, it is quite true that in the several recent cases,—in the case of Hunter v. Chalmers, in the case of Lees v. M'Kinlay, and of Paterson v. Hunter, and in the last and very recent case of Nisbet v. Lees,—this question as to the extent of our obligations has been the subject of very considerable consideration, and opinions of great weight have been pronounced; at all events, views have been suggested as to whether there is any limitation in a case of this kind. On the best consideration I have been able to give to this case, I do not know that I shall find it necessary to decide the abstract question which has arisen in these cases. I think that on the facts before us there is enough for the judgment to which I shall propose to arrive; but in all the cases that have been cited, although these views have been thrown out in every one of them, the obligation by the superior was found to be effectual, and no case has yet been decided in which effect has been given to any principle of limitation which seems to me to apply to this case. I think the obligation must be construed according to its terms, and must receive the full effect which these terms involve. I think the true principle on which such clauses should be construed is well stated by Lord Curriehill and Lord Ivory in the case of Lee v. Kinlay, and by Lord Wood in his opinion in the case of Hunter v. Chalmers. I cannot think that the superior's obligations can be read as contingent on the use which the vassal may make of the subject in the future. If that use be one which is legal under the contract, it must, at all events in the general case, be held to have been contemplated by the contract which gave the vassal the right so to use it; and although there is no doubt a show of hardship in some of the views suggested in these cases when they come to be sifted at close quarters, I think at all events it is very difficult to trace them to any canon susceptible of legal definition or allegation. Two canons of limitation have been suggested; the first, that each case must be considered upon its circumstances, and that the Court have to determine in each case to what extent the use made by the vassals of the subject was or was not in contemplation of the parties at the time of the contract; the other, that the superior cannot be liable beyond the amount of the feu-duty.
Now, with regard to the first of these, it is manifestly a rather vague and shifting rule to admit of any satisfactory application, for a rise of value may take place from an infinite variety of causes, apart altogether from the feu-duty on the property. It may result from improvement in agriculture. I suppose that one hundred years ago 5s. an acre were probably in East Lothian the full agricultural rent for land which is now rented at £6 an acre, and which at war times was rented at double that amount. A rise in value may be caused by many other things. It may be the result of a new invention, or any one of the adventitious influences which tend to increase or diminish the value of property. It the argument in the case referred to there was put the case of ground which, without any alteration on its natural state, as a mere depot for goods, would bring a good deal more than the old agricultural rent one hundred years ago; but it seems to me that when a man contracts for futurity he necessarily engages for the uncertain, and cannot be supposed to have intended that the obligation for which he receives full value was to be binding or not according to the extent to which it might or might not turn out to be profitable to him. Now, these are the difficulties that manifestly lie in the way, and the illustrations could be extended much more widely in the way of applying a general rule at that time; but I do not wish to be understood to indicate a fixed opinion upon that matter, because I do not think the present case is one that necessarily presents it for judgment; for in order to apply these difficulties we must assume that the amount as stipulated for was only agricultural value, and agricultural value in which it was not contemplated that the subject of the feu should become feuing ground. Now, I cannot come to that conclusion looking to the facts of this case; but I come to exactly the opposite conclusion. It is very difficult to say that when the town feued this ground in the immediate vanity of the existing buildings in the city of Edinburgh one hundred years ago, the town did not contemplate, or that it put out of its contemplation, the possibility that in one hundred years the land might be feued. It has waited for a hundred years for feu; and the rent which was stipulated, £21, 0s. an acre,
I suspect was in 1750 not the ordinary agricultural value of land in that vicinity. Neither do I think that if that had been stipulated as a building feu it would have been below feu-duties which were exacted from ground more nearly connected with the existing buildings than this was. And therefore I cannot come to the conclusion that there was any materials for assuming that the parties did not contemplate that the ground might at a long distance of time be building ground; and if, instead of one-half of the price or consideration being converted, the whole had been converted, and the town had been in possession of £340 from 1760, although in the end it might turn out that they had a considerable Bum to pay in respect of the poor-rates, that sum would have been in the coffers of the town the whole time; and therefore I am of opinion that there is no ground here to say that the claim which is made is one which it could never have been in the contemplation of the parties would be made. On the contrary, I think that this case is one in which we may, without any danger of trenching upon the intention of the parties, give effect to the plain words which they have used.
The other suggestion, to limit the superior's obligation by the amount of the feu-duty, is also one upon which it is unnecessary that we should express any decided opinion here, because there are no materials in the record for raising that question. It is not said that the burden was exceeded, and until a case of that kind is fairly presented I do not think it is necessary we should decide the somewhat difficult questions which have been raised on this matter. I own I see great difficulty in the way of any such limitation. A limitation such as that would not apply to a case where the obligation was contained in a disposition of land for a price paid, and yet the ratio, the theory of the limitation, would be as applicable in such a case as in the case of a feu-contract. But in the present case we have no statement on record, and it does not appear to be the fact, that the amount would exceed the feu-duty; and therefore
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The third suggestion is one which seems to me to have been over-ruled by the previous decisions. It has been suggested that the feu-duty should be taken as the value or rental of the lands at the time, and that the obligation undertaken by the feu-contract should be held to be limited to the amount of assessment on that property. I do not think that principle can be reconciled with the judgments already pronounced, and therefore, upon the whole of this matter, I think it safer to rest upon the words of the contract, if we have construed them aright. There was no doubt a point raised—and that was given no more consideration than the rest of the case at this part of it—there was a point raised upon the usage, and certainly there are some dicta in the cases on this head as to the effect of usage in construing a contract of this kind. Now, it is quite plain that usage of submitting to a burden, fulfilling an obligation, or paying a debt, is a much stronger claim for construing an obligation than the mere non-assertion of a right. A debtor may be fairly presumed not to pay unless he thinks he is liable, and means to acknowledge his liability. It does not follow with equal strength that the non-assertion of a right on the part of the creditor implies that he means to abandon his right; and in this case, if the obligation is rightly construed, I do not see that the non-assertion of the right to relief can deprive the creditor of the right now to make a demand. It certainly cannot construe the term “public burden ” not to include poor-rates, because by the rule of law it has been held that these terms are equivalent to poor-rates. In point of fact, there was no contemporaneous possession under this clause as regarded poor-rates, because there was none paid at the time, and none for forty years afterwards. It was very ingeniously put to use, and I think there was force in it, although perhaps not to the full extent that it was pressed, that nothing could be made of the non-assertion of the right with regard to poor-rates, because the right was not asserted with regard to any of the other burdens which undoubtedly affected the lands. I am not sure that I should have been disposed to follow that argument out to its full extent, but the general view I take is this—that under the clause there is an obligation to relieve of poor-rates, and I do not think the construction of the clause can be affected by the fact that no demand has been made. Therefore upon these grounds I am of opinion that, without deciding any general question on the matter, the legitimate result of these considerations is, that this obligation extended to poor-rates, and that there are no grounds for limiting the liability of the town under that obligation.
The only other observation which I think it necessary to make is with regard to the cess. It seems that these lands paid cess to the county at the date of the obligation. Since that time an Act of Parliament was passed by which they were brought in to contribute also a portion of cess to the property of the town. Now, I am quite clearly of opinion that that second burden is not one that can fall under the obligation here, it being a burden imposed by subsequent legislation. Therefore, on the whole matter, I am for adhering to the interlocutor of the Lord Ordinary.
As affecting the construction of this clause, it is material to observe that in narrating the subjects of the feu the lands are specially set forth in the deed as to be holden of the city “with the houses and planting built and planted or to be built and planted thereupon.” This is important, as demonstrating not only that at the date of the deed there were houses on the lands, but that the erection of other liouses was within the contemplation of the parties. Nor is it surprising that it should be so, seeing that the locality of the lands was in the near neighbourhood of the city, being described as parts “of the lands of St Leonards, lying on the north side of the Gibbet Loan near Edinburgh, belonging in property to the city.”
The grain feu-duty was to be accounted for and rated conform to the highest fiars of the county of Midlothian, payable yearly at Whitsunday. There was farther declared to be payable by the feuar the amount of the feu-duty at the end of each twenty-five years, as commutation for the entry of heirs and singular successors in all time coming.
These are the material parts of the deed in which the obligation for relief which is for construction occurs; and the two questions which have arisen and been argued regard, first, the liability of the superiors for augmentations of stipend, and second, their liability for poor-rates assessed upon the lands and the houses thereon built.
(1) As regards augmentation of stipend: I concur in the views which have been stated, being of opinion that the case of Cuthbertson v. Cunningham, and that of Low v. Belhune, founded on in the case of Cunningham, are conclusive authorities on this point. I am not aware that in any of the subsequent cases the authority of these decisions has been disputed, provided the terms of the clause and the circumstances in which the question of relief is raised are substantially the same. And on comparing this case with that of Cunningham I do not find that substantially there is any real difference. There the clause obliged the disponer to warrant “from all payments of any teinds or minister's stipend forth of the said lands in all time coming.” Here it is all teinds, minister's stipends, &c., which do or may affect the lands now and “in all time coming.” The latter is the more stringent of the two. In neither case was there any stipend eligible from the lands at the time, and in neither case were the teinds disponed to the vassal. Augmentations of stipend were held to be within the clause in the decided case, and on the same grounds that conclusion alone can, as I think, be reached in the present case.
(2) The more important question relates to the relief of poor-rates. The construction of similar
Page: 297↓
That a clause so expressed includes poor-rates under the term “other public burdens” does not admit of any dispute. It has been so ruled authoritatively. Nor was this questioned at the debate, unless there appear, from the terms and provisions of the deed in which the clause occurs, good ground for holding the parties to the contract to have intended the words to be of a different meaning. In this contract, however, there is nothing on which any argument to that effect can be maintained; and whatever room there may be for limiting the extent of the liability, it must be held that the clause of relief here does embrace poor-rates.
The superiors, however, contend that the relief competent to the vassal cannot embrace the whole assessment imposed on the subjects as they at present exist, but should be limited to that portion of it which effeirs to the value of the lands as at the date of the feu-contract. This question has been frequently the subject of consideration by the Court; and all that can be contended for on the one side and the other will be found in the report of those decisions. The case of Hunter v. Chalmers, 16th July 1858, was peculiar in this respect, that the only relief claimed by the vassal was of such proportion of the poor-rates assessed upon the lands and houses as effeired to the amount of feu-duty; but the principles recognised in the judgment involved the more general question, Whether relief of the whole poor-rates payable from the subjects, notwithstanding its increased value through the erection of houses, were or were not within the purview of the clause? And that more general question has been expressly before the Court in the more recent cases of Paterson's Trustees v. Hunter, 10th Dec. 1863, and Nisbet v. Lees, 15th June 1869. In both these cases the question was considered, whether Buch a clause of relief as here covered poor-rates imposed on the buildings erected on the ground as well as on the ground itself. It was so ruled. No doubt in these cases there were peculiarities which it was contended must have the effect of shaking their authority as precedents on the general question. In that of Nisbet the peculiarity was that from the terms of the contract it appeared to have been within the contemplation of the parties that buildings should be erected on the feu. The same pecularity, however, seems to exist in this case. Having regard to the words quoted from the contract, it is difficult to reach any other conclusion than that, not the houses existing at the date of the deed only, but houses that were to be built on the ground, were in the view of the contracting parties. But apart from this consideration, there does not seem to me any good ground set forth in this record for holding the erection of houses as built at the date of this action other than a legitimate use of the ground by the vassal. There are no data given by the defenders on which any other conclusion can be reached. The valuation, on which the assessment has been imposed, is not apportioned between the lands and houses as these existed at the date of the feu-contract, and houses erected since that date. It is, in truth, only the general question, Whether rating on houses, as well as on lands, was to be held embraced within the clause irrespective of the date of their erection. Further, it is not alleged that a large and expensive manufactory or other unusual erections have been put on the ground. Such a case has been stated in the previous decisions to be exceptional. We have not to consider such a case. Neither have we to consider, under this record, the case of the whole ground being covered with streets and houses. A few houses only appear to have been erected when this action was brought, and the poor-rates, of which relief is sought for the last year in the state, viz., 1864–65, is only £22, 17s. 6d., while the feu-duty, converting the original reddendo into money as at the highest fiar prices, is between £40 and £50. To that may require to be added a proportion of the taxed amount of the casualties on the one hand, and on the other the amount of the other burdens. That is the case with which alone we have to deal.
The defender's counsel said that it was all but certain that in a few years the ground would come to be covered with buildings, the poor-rates on which might be equal to the feu-duty, or exceed it. Along with the Judges who decided questions of a similar kind in the cases to which 1 have referred, I do not say whether or not the superiors in that event might not have ground to contend that they cannot be liable for any such excess of payment. It may be so. We have no such case before us; and it will be time enough to consider the question when it arises.
A different principle of adjustment has been repeatedly suggested, viz., that the agricultural value of the subject should be estimated by the feu-duty, and a proportional allotment of the cumulo assessment on that footing be laid on the superior. There is much equity in that mode of solving the rights of parties, and I feel the force of the reasoning by which it is supported. The decisions to which I have referred, however, appear to have been pronounced on the footing that such a principle of adjustment was inadmissible. I do not think that the question in this view of it is open in this Court.
Page: 298↓
Agents for Pursuers— J. & J. Turnbull, W.S.
Agents for Defenders— Millar, Allardice, & Hobson, W.S.
