Scottish Court of Session Decisions

By a feu-contract dated 1st June 1867 Robert George Crawford Cumming, Esq. of Barremman, disponed to in favour of Archibald Chalmers, coach-proprietor, Auchnear, Roseneath, certain lands one acre in extent lying upon the shores of the Gareloch. The feu-contract provided that for the first four years the feuar should pay £4 of yearly feu-duty, and after that that the feu-duty should be £10 per annum. It was provided that the feuar at the expiry of six years from the term of Whitsunday 1867, and within one year thereafter, should be bound to erect a dwelling-house and offices, the plans being shown to and approved of by the superior, and it should not be lawful to erect on the ground more than one dwelling-house and offices, and which dwelling-house and offices should compose the whole buildings to be erected, and be slated, and be in conformity to plans to be submitted to and approved by the superior, and be capable of yielding a certain yearly rent. It was also provided by the feu-contract that if at any time there should be two years' feu-duty in arrear and unpaid then the ground and buildings thereon should revert to the superior. In 1869 a small house called Woodside Villa was erected in one corner of the feu. No other house was ever built there.

In 1871 the estate of Barremman, including the superiority of the subjects feued to Chalmers, was sold to Robert Thom, Esq., the pursuer of the action, who was duly infeft.

This was an action by Mr Thom as superior to enforce the irritancy ob non solutum canonem incurred by non-payment of the feu-duty for more than two years consecutively. It was admitted that the feu-duty had not been paid since Martinmas 1877, but the defender, Chalmers, denied that the irritancy was incurred, on the ground that in 1879 he submitted plans to the superior for a dwelling-house he proposed to erect, but he, the superior, declined to approve of them, though he had never stated any reason for not approving, and the defender had in consequence been unable to erect a dwelling-house on the ground or to make it available for the purpose for which it was feued. He stated that it was in

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consequence of that that he declined to pay the feu-duty. The defender also stated that the small house he built in 1869 was not the house he was to build in implement of the obligation in the feu, alleging that it was only built as a lodge for the house he intended to build.

The pursuer pleaded, inter alia, that the defence was irrelevant.

The defender pleaded—“(1) The superior having wrongfully failed to sanction or approve of the plans of the dwelling-house and offices to be erected on the ground, and thereby prevented the defender from making the ground available for the purpose for which it was feued, he is not entitled to exact payment of the feu-duty stipulated in the feu-charter.”

The Lord Ordinary allowed a proof. The defender led. He gave evidence to show that in 1869 he built a small house in the corner of the feu, the rental of which was £15, that he from time to time intimated his intention of building a mansion-house, and exhibited plans, but these were kept in pursuer's hands and were never approved of.

The Lord Ordinary decerned in terms of the conclusions of the summons.

“ Note.—The defender has given no sufficient reason for refusing to pay the feu-duty. It is said that the feu has been rendered uprofitable by reason of the superior's wrongful refusal to sanction the erection of a dwelling-house on the feu; but the superior “appears to me to be within his right in declining to waive the condition of the feu-contract, which prohibits the erection of more than one.

It is said that the house which has been built is not of the character contemplated by the contract; and that a verbal agreement was made between the defender and the pursuer's author, who was then superior, that a larger house should be built, for which the present house should serve as a gardener's cottage. If this arrangement implied a departure from the terms of the feu-contract, it is in no way binding upon the pursuer. But I think it quite unnecessary to determine the extent of the superior's right to prevent farther building. Whether the house already built is or is not of the character originally contemplated in taking the feu, it has been built and accepted in satisfaction of the obligation to build. The time for the performance of that obligation is long past; and the superior makes no complaint that it has not been satisfactorily performed. On the other hand, there is no evidence that he has agreed to depart from his claim for feu-duty. The rights of parties therefore, are still to be measured by the feu-contract. If the contract allows the defender to build a new house, the superior cannot prevent him doing so. If it does not allow him to build a new house, he is still bound to pay the stipulated feu-duty, but all that the superior maintains is, that there are not to be two dwelling-houses on the feu. He does not pretend that he can prevent the vassal enlarging his present house, or building a new one, provided he does not violate the conditions of the feu-contract. I am not satisfied that the defender has hitherto had any serious intention of building. But if he has, the superior's refusal to sanction plans will not justify his refusal to pay feu-duty. It might have been better if the pursuer had stated distinctly whether he had any objection to the plan submitted to him irrespective of the stipulation as to the erection of more than one dwelling-house. But his refusal to commit himself further than by intimating that he was to insist in his rights under the contract does not appear to me to create any such obstacle in the way of the defender's making every legitmate use of his property, as to bar him from maintaining his claim for feu-duties.

The defender will have an opportunity of purging the irritancy, if he thinks fit, before the decree becomes final.”

The defender reclaimed, and argued—It was admitted that the defender had not fulfilled the conditions of the contract in erecting the necessary buildings upon the feu, but that was because the superior would not then consider plans laid before him. The simplest way that the tenant had of forcing his landlord to consider these plans, and so enable him to carry out his contract, was to withhold the payment of the feu-duty. The superior had taken no steps to enforce the obligation of the tenant to erect proper buildings at the proper time, and he had now no reason to refuse to look at the defender's plans. Bell (Prin. 702) laid down that a vassal had right to retain the feu-duties wherever any essential condition of the feu-right remained unperformed by the superior in his character as such— Ainslie v. The Magistrates of Edinburgh, Feb. 9, 1842, 4 D. 639; Cockburn Ross v. The Governors of Heriot's Hospital, July 1, 1825, 4 S. 128, and May 23, 1826, rev. H.L., 2 W. and S. 293; Arnot's Trustees v. Forbes, Nov. 3, 1881, 9 R. 89.

The pursuer's counsel was not called upon.