Scottish Court of Session Decisions

The Conveyancing (Scotland) Act 187 4 (37 and 38 Vict. cap. 94), sec. 4, sub-sec. 2, provides—“Every proprietor who is at the commencement of this Act, or thereafter shall be, duly infeft in the lands, shall be deemed and held to be, as at the date of the registration of such infeftment in the appropriate register of sasines, duly entered with the nearest superior whose estate of superiority in such lands would, according to the law existing prior to the commencement of this Act, have been not defeasible at the will of the proprietor so infeft… to the same effect as if such superior had granted a writ of confirmation according to the existing law and practice.” … Sub-Sec. 3 provides—“Such implied entry shall not prejudice or affect the right or title of any superior to any casualties, feu-duties, or arrears of feu-duties which may be due and exigible in respect of the lands at or prior to the date of such entry: … But provided always that such implied entry shall not entitle any superior to demand any casulty sooner than he could by the law prior to this Act, or by the conditions of the feu-right, have required the vassal to enter, or to pay such casualty irrespective of his entering.”

John Little Mounsey, pursuer of this action, was lawful superior of an area of ground and buildings thereon, forming 90 Candlemaker Bow, Edinburgh, situated at the head of the Cowgate of Edinburgh, on the north side of Greyfriars' Churchyard, all as fully described in the disposition in his favour granted by the Misses Sarah Shaw Whitehead, Annie Whitehead, Alice Whitehead, and Helen White—head, dated 25th December 1879, and duly recorded in January 1880. The disposition in his favour assigned the rents, feu-duties, and casualties, as well past due or exigible and unpaid as to become due or exigible.

David Palmer, the defender in this action, was proprietor of these subjects, having acquired them by disposition, dated and recorded in 1875, from James Miller, who acquired them in 1867 from the trustees of James M'Caskie. M'Caskie acquired them from the trustees of Charles Oliphant in 1858.

Oliphant's trustees had been entered with the superior, the pursuer's predecessor in the superiority. The last survivor of them was Robert Hunter, advocate, who died in 1871.

Miller was never expressly entered with the superior, but was proprietor at the time of the passing of the Conveyancing (Scotland) Act 1874.

On 20th April 1883 the pursuer, as superior, raised against Palmer, the present defender, an action of declarator and payment concluding that in consequence of the deaths of Oliphant's trustees, the vassals last vest and seised by the superior, a casualty of one year's rent became due to the superior on the death of Hunter, the last survivor of them, in 1871, which was still unpaid, and that defender, being the proprietor of the subjects, was bound to pay it.

Defences were not lodged, and after a correspondence, the amount of the casualty, after all proper deductions, was fixed at £60, and Palmer having paid that sum took this receipt—“Received from Mr David Palmer, corn merchant, Cowgatehead, Edinburgh, the sum of £60 sterling, in full of the casualty payable for subjects 90 Candlemaker Row, Edinburgh, on the death of the last entered vassal in October 1871, viz., R. Hunter, advocate, the last surviving trustee of the late Charles Oliphant, W.S., conform to summons at Mr Mounsey the superior's instance, against Mr Palmer, signeted 20th April last, which sum of £60 is accepted in full of the casualty sued for in said summons. (Signed) Campbell & Somervell, agents for Mr Mounsey.”

Miller died on 5th June 1883.

Mr Mounsey in October 1883 raised this action of declarator and payment against Palmer to have it found that in consequence of his, “defender's, infeftment in the subjects, and of the death of James Miller, ironmonger, Princes Street, Edinburgh, the last vassal vest and seised, or held as vest and seised, by the superior in the said subjects, in respect of whose implied entry a casualty has been paid to the said superior, or of either event, a casualty, being one year's rent of the said subjects, became due to the superior of the said subjects on or about the 18th May 1875, being the date of the registration of the defender's infeftment in the appropriate register of sasines, or at least on or about the 5th June 1883, being the date of the death of the said James Miller, and that the said casualty is now exigible and still unpaid, that the defender is liable to make payment of the same to the pursuer, and that the full rents, maills, and duties of

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the said subjects after the date of citation herein do belong to the pursuer, the said John Little Mounsey, as superior thereof, until the said casualty and the expenses after-mentioned be otherwise paid to the said John Little Mounsey.” Then followed a petitory conclusion for £135, or such sum as might be found to be equal to one year's rent.

He stated—“(Cond. 2) The last entered vassal in the subjects, in virtue of whose entry or implied entry with the superior the casualty thereby due was paid, was James Miller, ironmonger in Princes Street, Edinburgh, the author of the defender, who died on or about the 5th June 1883. The defender is now proprietor of the said subjects, duly infeft and entered with the superior of the said subjects as at or about 18th May 1875, being the date of the registration of the defender's infeftment in the register of sasines, subject to the superior's right to enforce payment of the casualty due on entry, by virtue of the 2d sub-section of section 4 of The Conveyancing (Scotland) Act 1874. Admitted that the pursuer raised an action on the date libelled against the defender for payment of the casualty due in respect of the infeftment or implied entry of James Miller with the pursuer, and become exigible by the death of the last survivor of the last entered vassals, the said Oliphant's trustees. No defences were lodged to the said action, but after a long correspondence, asking for delay on the part of the defender, the case was settled by agreement. By the terms of settlement the casualty was paid in respect of the implied entry of James Miller with the superior in 1874, and the composition was calculated upon the rental for the year 1871–2, being the year current at the death of Robert Hunter, the last entered vassal prior to the passing of the Conveyancing (Scotland) Act 1874. Mr Andrew, S.S.C., the agent for Mr Miller, as well as Mr Alexander Gordon, the agent for the defender Mr Palmer, was a party to the said agreement. It was part of the said agreement that the defender Mr Palmer should be repaid the amount of the first casualty by his author the said James Miller, and he was so repaid. No casualty was then paid in respect of the entry of the present defender. The correspondence, which contains the terms of settlement, is produced and specially referred to.”

He pleaded—“(1) The pursuer being superior of the subjects described in the summons, and not having received any casualty in respect of the infeftment of the defender, is entitled to decree as concluded for. (2) The defender being justly indebted and resting-owing to the pursuer the casualty sued for, and refusing, or at least delaying to make payment of the same, the pursuer is entitled, in virtue of The Conveyancing (Scotland) Act 1874, or at common law, to decree for payment of the sum of £135, less the ordinary deductions as they may be fixed by the Court, with expenses.”

The defender in his defences narrated the proceedings in the previous action as above detailed. He stated—The defender paid the casualty sued for in the said action conform to the receipt herewith produced [quoted supra], and is the vassal in the subjects entered with the superior in virtue of the said infeftment in his favour and the said receipt for the casualty due on the death of the said vassals. The action raised against the de fender, and in respect of which he paid the composition, was so raised in respect of his own implied entry alone. Mr Miller was bound to relieve him of the casualty which was due prior to the disposition in favour of the defender in virtue of the clause of relief contained in that disposition.

He pleaded—“(1) The pursuer is bound to exhibit his titles, and also the titles of the subjects excepted therefrom, in order that the defender may satisfy himself as to his right to the casualty sued for. (2) There being no casualty due to the pursuer in consequence of the death of the said James Miller, the defender is entitled to absolvitor. (3) The defender having paid the casualty due in respect of his entry with the superior, ought to be assoilzied from the conclusions of the present action.”

On 19th February 1884 the Lord Ordinary ( Fraser) pronounced the following interlocutor:—“Finds that the pursuer is the immediate lawful superior of the subjects described in the summons, now belonging to the defender, and is entitled to all the casualties payable by the vassals in the said subjects: Finds that the vassals last expressly entered with the superior were Oliphant's trustees, the last survivor of whom was Robert Hunter, advocate, who died on the 23d day of December 1871: Finds that the property was in non-entry from the date of the death of the said Robert Hunter; Finds that Oliphant's trustees sold the property to James M'Caskie, hat manufacturer in Edinburgh, and Janet Hogg his wife, and sasine was taken on the disposition on 22d June 1858: Finds that M'Caskie conveyed the property to trustees by general trust disposition and settlement, on which a notarial instrument was expede in their favour on 23d February 1867: Finds that M'Caskie's trustees conveyed the property to James Miller, ironmonger in Edinburgh, and that the disposition in Miller's favour was recorded on the 15th day of May 1867: Finds that Miller sold the property to the defender, and that the disposition in defender's favour was recorded on 18th May 1875, and he is now the proprietor of the subjects: Finds that the pursuer on 20th April 1883 raised an action against the defender, as the proprietor duly infeft in the subjects, for declarator and payment of a casualty in respect of the death of Oliphant's trustees, and that the defender paid such casualty on 9th June 1883, conform to receipt in the following terms:—‘Received from Mr David Palmer, corn merchant, Cowgatehead, Edinburgh, the sum of £60 sterling in full of the casualty payable for subjects, 90 Candlemaker Bow, Edinburgh, on the death of the last entered vassal in October 1871, viz., R. Hunter, advocate, the last surviving trustee of the late Charles Oliphant, W.S., conform to summons at Mr Mounsey the superior's instance against Mr Palmer, signeted 20th April last, which sum of £60 is accepted in full of the casualty sued for in said summons. (Signed) Campbell & Somervell, agents for Mr Mounsey:’ Finds that James Miller was on 1st October 1874, by virtue of the 2d sub-section of section 4 of The Conveyancing (Scotland) Act 1874, impliedly entered with the superior: Finds that he died on 5th June 1883, after the said action against the defender had been raised: Finds in law that the defender having paid the composition to the superior, no further composition is claimable by the latter until the defender's death:

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Therefore assoilzies the defender from the conclusions of the summons, and decerns: Finds the defender entitled to expenses, &c.

“ Opinion.—The 4th section of the Conveyancing (Scotland) Act 1874 has given rise to an amount of litigation somewhat unexampled with reference to so recent a statute, and which indicates that that section has not been drawn with all the precision that could be wished in reference to a statute dealing with interests so important as those of superiors and vassals. The main object of it was to abolish mid-superiorities, while at the same time reserving intact the pecuniary interests both of superior and vassal. It was not intended to aggrandise by one penny the rights of the superior, or to lay a heavier weight upon the vassal than he had hitherto borne; and yet so far as the decisions interpreting the section have gone the result has been different. For example, the ingenious mode by which a singular successor of a vassal could escape payment of a composition by tendering an entry by the heir of the last vassal who was only liable in relief-duty, has been declared no longer competent; and this great advantage has been given to the superior without any compensation to the vassal. Every vassal who now buys a property and takes infeftment, is entered with the superior as a singular successor, and at once must pay a composition if there be no vassal alive who has paid a composition.

The sweep of the statute has been attempted to be further extended, and the present is a very good illustration of this. Before stating the facts in reference to the present case, it may be proper to refer to the old law anterior to the statute, because while the statute creates the implied entry with the superior, simply by a proprietor being infeft in the lands, and without any charter or other writ from the superior, it is expressly provided by the 3rd sub-division of section 4, ‘that such implied entry shall not entitle any superior to demand any casualty sooner than he could by the law prior to this Act or by the conditions of the feu-right have required the vassal to enter or to pay such casualty irrespective of his entering.’ We are thus sent to the law prior to this Act. When lands fell into non-entry the superior was entitled to demand from the proprietor in possession that he should enter and pay a composition, or submit to the seizure of the subjects by the superior under a decree of declarator of non-entry. He being a singular successor, his obligation was to pay a composition of a year's rent, but he was under obligation to pay no more. Although the property had been conveyed from the last entered vassal to half-a-dozen different intermediate persons before it came to the proprietor in possession, this last person was only obliged to pay one composition.

Now, has this law been altered by the Conveyancing Act of 1874? The pursuer contends that it has, and states his case as follows:—Let A B be the last entered vassal. He conveys to No. 1, who conveys to No. 2, who conveys to No. 3, who conveys to No. 4, the person in possession. The superior, upon the death of A B, the last entered vassal, brings his action for payment of a composition—as he is entitled to do—against the person in possession (No. 4), and obtains payment. After he has obtained this, No. 1, the first disponee from the last entered vassal A B, dies, and the superior thereupon demands payment from the proprietor in possession, of another composition, on the ground that as No. 1 was impliedly entered, the casualty of composition became due at his death. And so on the death of No. 2 and No 3 he demands a composition on the ground that these persons were likewise entered as vassals, and that upon each of their deaths a composition as a debitum fundi became due, and was payable by the proprietor in possession.

Now, all this is in contradiction of the declaration of the statute that the rights of the superiors to demand casualties shall in no way be increased. When his lands are in non-entry he is entitled to a vassal, and to a composition from that vassal, but to nothing further. After the vassal has paid him the money, there is an end of all further demand by the superior, till that vassal's death. This is the plain meaning and common sense of the statute, and the consequence is that the demand of the pursuer in the present case is untenable.

The facts are that the last vassal was Robert Hunter, an advocate, who died on 23rd December 1871. He was the last survivor of a number of trustees. Hunter and his co-trustees conveyed the property to M'Caskie, whose trustees conveyed it to James Miller on 15th May 1867, who conveyed it to the defender in 1875. James Miller died on 5th June 1883.

On 20th April 1883 the pursuer raised an action against the defender to have it found and declared that in consequence of the death of Hunter and his co-trustees, ‘who were the vassals last vest and seised by the superior …. a casualty, being one year's rent of the subjects, became due to the superior of the said subjects upon the 23rd day of December 1871, being the date of the death of the said Robert Hunter, the last survivor of the said last entered vassals, and that the said casualty is still unpaid.’ This action was not prosecuted to judgment. The defender had no good defence against it. He paid the casualty and the expenses, and he became the entered vassal of the pursuer, who last had paid a composition.

After this action was raised James Miller died, and thereupon the pursuer, the superior, insists in a new demand against the defender, who is his entered vassal, to pay up the casualty which the pursuer maintains became due upon the death of Miller, who had obtained an implied entry in consequence of being proprietor on 1st October 1874, when the Conveyancing (Scotland) Act of that year passed. The pursuer says that the defender as proprietor in possession only paid his just debt on the decease of Hunter, and he must now pay another debt upon the decease of the vassal who was impliedly entered to it in October 1874. This is a construction of the statute that the Lord Ordinary cannot adopt. It is contrary to justice, and is a perversion of the main object of the 4th section of the statute. The pursuer has got a vassal who has already paid him a composition, and under the old law he could demand no more than one composition, and he can demand no more under the new law, for his rights under the latter are declared to be the same as under the former.

There was the usual clause in the disposition by Miller to the defender, whereby Miller undertook to free and relieve the defender of all casualties that were due prior to the sale, and under

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this clause and in accordance with the decision in Straiton Estate Company, Limited v. Stephens (16th December 1880, 8 R. 299) Miller's representatives have repaid to the defender the casualty which he paid to the pursuer. But this transaction between these parties in no way affects the relative rights and obligations of superior and vassal. The bargain between Miller and the defender was a matter with which the superior had nothing whatever to do, and the defender cannot be made to pay a composition to the superior not otherwise exigible merely because he has obtained repayment from his author.”

The pursuer reclaimed, and argued that no casualty had been paid by the defender in respect of his own entry. He was the vassal of the pursuer in respect of his implied entry, and the composition paid was in respect of Miller's and not of Palmer's entry.

Authorities—Bell's Prin., sec. 720; Neil v. Douglas' Trustees, 19 Scot. Law Rep. 827; Sivright v. Straiton Estate Company, June 12, 1878, 5 R. 922, and 6 B. 1208; Ferrier's Trustees v. Bayley, May 26, 1877, 4 R. 738; Rossmore's Trustees v. Brownlie, Nov. 2, 1877, 5 R. 201; Rankin's Trustees v. Lamont, February 27, 1880, 7 R. (H. of L.) 10; Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), sec. 4, sub-secs. 1 and 3.

Argued for defender—He had entered and paid composition for his own entry. A composition in respect of Miller's might have been demanded when he (Miller) held the subjects, but not now. The lands could not be in non-entry during the lifetime of the defender. If the Act had not passed the action would not have been raised. The superior was seeking by this action to get more compositions than one, whereas by the law prior to the Act he would have been only entitled to one. This was opposed to the letter and the spirit of the Act.

Authorities— Leith Heritages Company, June 8, 1876, 13 Scot. Law Rep. 731; Stuart v. Murdoch, June 6, 1882, 19 Scot. Law Rep. 649; Hope v. Duke of Hamilton, July 6, 1883, 10 R. 1122; Hamilton v. Guild, July 6, 1883. 10 R. 1117.

At advising—