Scottish Court of Session Decisions

This was an action at the instance of John Morris, accountant in Glasgow, against Charles Thomas Brisbane, heir of entail in possession of the estate of Brisbane, Ayrshire, for declarator (1st) that the pursuer was duly vest and seised in the dominium utile of certain subjects in Nelson Street, Largs, and that the defender was the superior

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thereof; (2d) that the original vassal, John Paterson, was duly vest and seised by sasine, recorded on 20th June 1834, in the fee of said subjects as vassal holding immediately of the defenders' authors under the conditions of the original feu-right; (3d) that the said John Paterson being still alive, the subjects were not in nonentry, and no casualties were due by the pursuer or his predecessors to the defender; (4th) that the pursuer and defender having failed to agree on terms for redemption of the casualties incident to the said feu, the pursuer was entitled to redeem the future casualties by paying the amount of the highest casualty estimated at the date of raising the action, with an addition of 50 per cent.

The subjects had been originally feued out by the defender's predecessors in favour of the said John Paterson, and the feu-disposition contained the following clause:—“Providing always, as it is therein expressly provided and declared, that it shall not be lawful for the said John Paterson or his foresaids to sub-feu the said piece of ground, or any part thereof, or to dispone the same, to be holden of themselves, but allenarly of and under the said granters as their immediate lawful superiors thereof, and that on contravention in this point not only all such subaltern feu-rights, but also these presents, and all following hereon, shall be null and void.” The subjects were subsequently transmitted through various parties to the pursuer, the conveyances containing a double manner of holding in the usual form, and thus creating, according to the pursuer's averment, no sub-fee or permanent base right. The conveyance immediately in favour of the pursuer was granted by John Aitchison, dated 3d and recorded 12th May 1876. In it the manner of holding was not specified. The pursuer being desirous to redeem the casualties payable in future for the said subjects, offered to redeem such casualties by paying the highest casualty exigible therefrom, with an addition of fifty per cent. The sum of £70 was agreed upon by the pursuer and defender as the clear rental of the subjects, and as the basis for fixing the casualty which might be exigible. The pursuer and defender were, however, unable to agree upon terms for the redemption of the casualties, and the present action was accordingly brought.

The main defence was that the object of the clause in the feu-right prohibiting and irritating subinfeudations was to ensure that a casualty should be paid, if the superior so desired, not merely on the death of the vassal, but on each transmission of the feu. The defender was willing, on payment of one composition, to give a valid title to the pursuer, and to allow him to redeem the casualties, not at the rate offered by the pursuer, but at two and a-half times the amount of the estimated casualty.

“By section 15 of the Act 37 and 38 Victoria, cap. 94, entitled ‘The Conveyancing (Scotland) Act 1874,” it is, inter alia, enacted—‘The casualties incident to any feu created prior to the commencement of this Act shall be redeemable on such terms as may be agreed on between the superior and the proprietor of the feu in respect of which they are payable: And failing agreement, all such casualties, except those which consist of a fixed amount stipulated and agreed to be paid in money or in fungibles at fixed periods or intervals, may be redeemed by the proprietor of the feu in respect of which the same are payable on the following terms, viz.—In cases where casualties are exigible only on the death of the vassal, such casualties may be redeemed on payment to the superior of the amount of the highest casualty estimated as at the date of redemption, with an addition of fifty per cent,” &c. By section 16 of the said Act it is, inter alia, enacted—‘The superior, unless he shall elect to have the redemption money converted into an annual sum as hereinafter provided, shall, on payment or tender of such redemption money, be bound, at the expense of the party redeeming, to discharge all right to the casualties so redeemed, and such discharge, which may be in the form set forth in Schedule F hereto annexed, or in a similar form, being recorded in the appropriate Register of Sasines at the expense of the party redeeming, shall operate as a valid and effectual discharge of such casualties.’ By the 17th section of the said Act it is inter alia, enacted—‘It shall be lawful for the superior to elect that the redemption money above provided shall be converted into an annual sum, equal to four per cent. upon the capital, and in that case a memorandum in the form set forth in Schedule G hereto annexed, or in a similar form, of the amount of such annual sum shall be signed by the parties or their respective agents, and recorded in the appropriate Register of Sasines at the expense of the party redeeming, whereupon such annual sum shall be deemed to be feu-duty, with all the legal qualities thereof, and shall form an addition to any existing feu-duty, and the superior's right to all casualties shall be held to be discharged.’ By the 18th section of the said Act it is, inter alia, enacted—‘Casualties subject to the fetters of an entail may be redeemed as aforesaid notwithstanding such entail, the redemption money being consigned in one of the banks in Scotland, incorporated by Royal Charter or Act of Parliament, in name of the Accountant of the Court of Session, who shall be allowed a reasonable fee for his trouble out of such money.’”

The defender pleaded that in a question with him the pursuer had no title to sue; that he had produced no title to the subject; that under the feu-disposition he was not entitled to redeem on the terms proposed by him, and that the redemption money tendered was insufficient.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 6 th November 1876.—The Lord Ordinary having considered the cause, Finds that the pursuer is entitled to redeem the casualties incident to the feu libelled by payment of the highest casualty, estimated as at the date of redemption, with an addition of 50 per cent.: Finds that the parties have agreed that the casualty is to be estimated at £70: Finds, therefore, that the pursuer is entitled to redeem the said casualties by paying to the defender the sum of £15: Finds the pursuer entitled to the expenses hitherto incurred: Further, appoints the case to be put to the roll for further procedure.”

“ Note.—The purpose of this action is to have it declared that the pursuer, as the proprietor of a feu created prior to the Act of 1874, is entitled to redeem the casualties incident to the feu on payment of the highest casualty, with an addition

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of 50 per cent. It is founded on the 15th section of the Act.

The feu was created by a feu-disposition granted in November 1833 by the authors of the defender to John Paterson, who is still alive. Paterson was duly infeft, and under the former law the fee would be full by the infeftment in his person. Since the feu-disposition was granted no other person has entered with the superiors except by the implied entry introduced by the Act of 1874.

The feu-disposition contains an express prohibition against subinfeudation, with a declaration that on contravention ‘not only all such subaltern rights, but also these presents, and all following hereon, shall be null and void.’

Since its creation the feu has been transmitted to several persons by conveyances containing a double manner of holding. The last transmission is in favour of the pursuer. It is dated 3d, and recorded in the Register of Sasines 12th May 1876. The disposition does not express any manner of holding, and as the title contains a prohibition against subinfeudation, it must be read as a disposition of lands to be held a me only.—See 31 and 32 Vct. cap. 101, sect. 6. Some prior dispositions may be in the same position, but it does not seem material to inquire into them.

The defender pleaded that the pursuer had no title to sue, in respect that a casualty had become due, and must be paid before the pursuer could take the benefit of the 15th section. The Lord Ordinary is of opinion that this plea is not well founded. The only casualty alleged to be due is the casualty of non-entry. But under the old law none could be due so long as the fee remained full in the person of Paterson, and it is declared by the Act of 1874 (sub-sect. 3 of section 4) that an implied entry shall not entitle the superior to demand any casualty sooner than he could demand it under the former law.

But the defender further contended that the pursuer is bound to pay a composition before he can take benefit by his implied entry. The Lord Ordinary thinks that he is not. The right to redeem the casualties is introduced by the Act, and it is given to the proprietor of the feu, subject only to the condition that, before exercising it he shall pay any casualty which has become due. The pursuer is the proprietor of the feu, and he is entitled to enforce his statutory rights under the statutory conditions. These conditions, it is thought, do not require him to pay any casualty which has not become due under the old law.

It is true that the defender urged a plea of a broader kind. He maintained that the pursuer had no implied entry, because the precept on which he is infeft is contained in a disposition having an a me holding only, and could not be a warrant for an infeftment. He contended, therefore, that the pursuer could not have the benefit of the statutory entry, inasmuch as he is not ‘duly infeft in the lands.’ But the statute, it will be observed, declares that proprietors duly infeft shall be held to be duly entered to the same effect as if the superior had granted a charter of confirmation. It seems to follow, therefore, that the infeftment to which the statute refers includes an infeftment capable of confirmation, and this is all the more clear seeing that the statute not only declares that it shall not be necessary for the vassal to obtain any charter or writ of confirmation, but that it shall not be competent to the superior to grant any such deed.

The next question is, whether the pursuer is entitled to redeem on payment of one casualty and a-half, or of casualties and a-half. The Lord Ordinary is in favour of the former alternative. The disposition contains no clause by which any casualty is exigible on occasion of each sale or transfer of the property. It is true that the prohibition against subinfeudation might have the effect of inducing purchasers to enter in order to the security of their title. But the entry is voluntary on their part. The superior could not compel it, nor exact any casualty if they declined to enter. The Lord Ordinary is therefore of opinion that this is not a case where casualties are ‘exigible on occasion of each sale or transfer of the property.’”

Against this interlocutor the defender reclaimed.

Argued for him—(1) This case is distinguished from that of Colquhoun v. Walker, May 17, 1867, 5 Macph. 773, where the Lord President says—“It would have been otherwise had the prohibition been fenced with an irritancy.” Hence the pursuer has no good title to sue, or to the lands. Nor is he a proprietor duly infeft in lands in terms of sec. 4, sub-sec. 2, of the Conveyancing Act 1874, and therefore entitled to implied entry. The infeftment a me is of no value till confirmed by the superior. Here the pursuer is using his implied entry as an active title to redeem, and we are entitled to state all objections and pleas competent to the superior before the passing of the Act. (2) As regards the terms of redemption, we are entitled to a composition in respect of the transmission of the feu. The object of the prohibition in the feu-right is to preserve the superior's casualty (Bell's Prin., sec. 866). Sec. 4, sub-sec. 3, declares that implied entry is not to affect the right of the superior to casualties which may be due or exigible.

The pursuer was not called upon.

At advising—