Scottish Court of Session Decisions

Lewis Potter, merchant in Glasgow, was the vassal last vest and seised in the lands of Nether-houses, and part of the lands of Whistleberry, in the parish of Lanark, conform to instrument of sasine in his favour dated 28th November 1865. He was entered with the superior, the Duke of Hamilton. The entry of singular successors was untaxed.

In November 1878 Potter's estates were sequestrated, and James Wyllie Guild, chartered accountant, Glasgow, was confirmed as trustee, conform to act and warrant of the Sheriff of Lanark, dated the 16th and recorded in the Register of Abbreviates of Adjudications the 20th day of November 1878.

Lewis Potter died on 11th June 1881, and upon the 18th November 1882 an action of declarator and for payment was raised by the Duke of Hamilton, in terms of sec. 4, sub-sec. 4, of the Conveyancing (Scotland) Act 1874, against Guild as his trustee, concluding that in consequence of the death of Lewis Potter, who was the vassal last vest and seised in the lands, a casualty, being one year's rent of the lands, became due to the pursuer as superior of the lands on the 11th June 1881, being the date of Lewis Potter's death; that the rents from and after the date of citation belonged to the pursuer till the casualty and expenses should be paid; and that the defender as trustee should be decerned and ordained to make payment to the pursuer of £2000, or such sum as should be ascertained to be a year's rent of the said lands.

The defender denied that he was successor of Potter as vassal in the lands, and averred that he possessed the said lands on a personal and unfeudalised title, viz., his act and warrant as trustee, and that John Alexander Potter, the only surviving son of Lewis Potter, was his heir in the said lands, and that he was ready to enter with the pursuer as his vassal, and had offered to do so.

The pursuer pleaded—A casualty of one year's rent of the lands described in the summons having become due to the pursuer, as superior thereof, by the defender as trustee upon the death of the said Lewis Potter, the previous vassal, the

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pursuer is entitled to decree as concluded for.

The defender pleaded—The pursuer's averments are not relevant or sufficient to support the conclusions of the summons. (2) The heir of the last entered vassal being willing to enter and pay relief-duty accordingly, the action cannot be maintained.

A minute of compearance was lodged for John Alexander Potter, and the Lord Ordinary superseded consideration to allow him to make up his title. Thereafter the Lord Ordinary assoilzied the defender.

“ Note.—There can be no question that prior to the Conveyancing Act of 1874 the heir of the last entered vassal might, notwithstanding the sequestration of his ancestor, but by arrangement with the trustee on his estate, have completed a title and entered with the superior for payment of relief. But the pursuer maintains that under the law introduced by that statute this is no longer possible, because the heir is no longer in a position to protect the singular successor from the superior's claims by entering to a mid-superiority, so that if the singular successor completes his title at all he must do so by a process which involves an entry with the superior, and so must subject himself to liability for composition; while, on the other hand, if, in order to escape such liability, he abstains from completing a title, the superior may, in terms of the fourth sub-section of section 4 of the Conveyancing Act, sue an action of declarator and for payment of a casualty against him as the successor truly interested in the lands, ‘whether he shall be infeft or not.’

It is true that a singular successor of the last entered vassal cannot evade his liability for composition by holding out uninfeft, if he does not permit the heir, or if the heir does not choose to take up the fee. For the new action which the statute has introduced in lieu of a declarator of non-entry may be maintained whether the successor is infeft or not; and the superior who has obtained decree in such an action has the same remedies for making his decree effectual by entering into possession and uplifting the rents, as if he had obtained a decree of declarator of nonentry. But the action cannot be maintained except by a superior, who but for the statute would have been entitled to sue a declarator of non-entry; and therefore it cannot be maintained if the heir of the last vassal, being in a position to complete his title by service to his ancestor, effects an entry by recording his service in the Register of Sasines and tenders payment of the appropriate casualty. There is nothing in the Conveyancing Act to prevent a purchaser holding a merely personal right from abandoning his right if he thinks fit, and leaving the fee vacant for the benefit of the heir. And if the heir in these circumstances desires to take up his ancestor's estate, the superior can have no title to inquire into the conditions upon which the purchaser has waived his right. It is settled by a series of decisions that since the Act of 1874 a singular successor cannot have the benefit of a recorded title and at the same time interpose the heir as mid-superior in order to escape payment of composition. But if he abstains from completing a feudal title, and leaves the heir not a barren mid-superiority merely, but the dominium utile of the estate, his personal right interposes no obstacle, either formal or substantial, to the entry of the heir. And if the heir of the investiture demands an entry, or, as the law now stands, effects an entry by recording his service, the superior cannot refuse to acknowledge him on the ground that a stranger to the investiture might have taken up the fee in his room if he had thought fit to feudalise a personal right, for the superior is in no way concerned with the rights which may have been derived from his vassal so long as they remain personal.

It can make no difference that, as in the present case, the person who might have established his right as the singular successor of the last vassal is the trustee on a sequestrated estate, provided he has abstained from completing a feudal title. A trustee may have various reasons for abandoning the feudal estate of the bankrupt. He may think the estate too heavily burdened to justify his incurring the liabilities of a vassal, or, trusting in the solvency and honesty of the heir, he may think it safe to leave the estate in his hands on his personal obligation to account for the rents. Whether it is a prudent course for these or other reasons to abstain from making his right real is a question of administration for the trustee and the creditors. But to the superior it is res inter alios with which he has no concern.

The pursuer maintained, on the authority of the Magistrates of Musselburgh v. Brown, M., 15,038, and Grindlay v. Hill, 19th January 1810, F. C., that the superior was not bound under the law as it stood prior to the Act of 1874 to enter even the heir for payment of relief-duty if the persons truly interested in the estate were strangers to the investiture. In the case of the Magistrates of Musselburgh, the heir, instead of entering by service and precept of clare constat, demanded a charter with an assignable precept, in virtue of a disposition containing procuratory of resignation in his favour by his ancestor, the last vassal. It was held that he could not enter in that form except on payment of a singular successor's composition, because if he obtained an assignable charter he would be enabled to introduce a singular successor in his place without further payment. In the case of Grindlay it was held that trustees under a general conveyance who had adjudged in implement from the heir of the truster, were not entitled to a charter of adjudication except for payment of composition as singular successors. These cases, therefore, are illustrations of the well-settled doctrine that the superior could not be compelled to enter strangers to the investiture, except on payment of the fees and casualties due by law, in terms of the statutes, and that he could not be compelled to enter the heir except by a precept which should not be assignable, and upon which he alone could be infeft—Ersk. iii. 8, 29. But they have no application where the heir proposes to enter by service in that character, so as to make no change on the investiture.

But it is maintained that in the present case the entry of the heir for payment of relief will operate precisely in the same way as if he had obtained an assignable precept under the old law; for it is said that as soon as his title is completed and the casualty discharged he will be in a position to convey to the trustee in the sequestration, who may then complete a feudal title and take the benefit of the entry implied by the statute without paying composition as a singular suecessor

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during the survivance of the heir. Whether, in the event supposed, the trustee will be liable for composition, depends on the construction and effect of the proviso that an implied entry ‘shall not entitle a superior to demand a casualty sooner than by the prior law or by the conditions of the feu-right he could have required the vassal to enter, or to pay such casualty irrespective of his entering.’ But that is a question which does not arise in the present action. If, when it does arise, it should be found that no casualty is payable until the death of the heir, the singular successor will obtain an advantage; but the argument assumes that it is an advantage conferred upon him by statute. If, on the other hand, it should be found that he cannot resist payment, the superior will be in no way prejudiced by the entry of the heir. In the meantime the test of the heir's right to enter upon payment of relief is the production of a service; and that test being satisfied, and the fee being full by the entry of the heir, the superior cannot under the statute demand a casualty from the defender in anticipation of a possible entry, upon a title not yet completed, because by the prior law he could not have required the defender ‘to enter or to pay a casualty irrespective of his entering.’

It is said that no implied entry is ‘pleadable in defence against’ the action (sub-section 4). The provision referred to will prevent ‘a successor in the lands’ from whom a casualty is exigible, from pleading that the claim is discharged by force of his entry under the statute. But if the question is whether the casualty exigible is relief from the heir or composition from a disponee, it is equally material, under the present as under the prior law, to consider whether the fee is not filled by the entry of the heir. The defence is not that an implied entry excludes the superior's demand for payment of the appropriate casualty, but that the heir having entered and paid, or tendered payment of the duty exigible on entry, the superior can have no further claim for a casualty, so long at least as the heir remains undivested of the fee.

The pursuer maintained that the heir had no title to compear, and that the action should proceed irrespective of his compearance, on the ground that where the last vassal has been entirely divested so as to leave no interest in the heir, it is unnecessary to call the latter in a process of declarator of non-entry. There is authority for the proposition that when the last vassal has entirely divested himself, as by disposition with proouratory and precept, it may not be necessary to call the heir. — Magistrates of Dundee v. Kyd, 7 S. 801; Magistrates of Hamilton v. Swan, 16 D. 437; Cauvin's Hospital v. Falconer, 1 Macph. 1164. But the ground on which this has been held is that the heir had admittedly no interest in the matter, not being in a position to demand an entry. In the present case the heir has a material interest, and in a question with the superior he has the only interest, because by consent of the defender he is to take up the estate and enter as vassal.”

The pursuer reclaimed, and argued that the “successor” of the vassal in the lands was the trustee, for he was the person who had the real interest in them. [The whole argument for the pursuer appears from the opinion of the Lord Ordinary. See also the case of Hope, infra, which was argued along with the present].

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