Scottish Court of Session Decisions

By feu-contract dated 17th and 26th September 1879 William Aiton of Boddam, Aberdeenshire, disponed to James George Ferguson Russell of Aden and Buchanness Lodge, Aberdeenshire, and his heirs and assignees, an area of ground measuring about 9 acres adjoining Buchanness. The feu-contract, after specifying certain conditions, provided, inter alia:—“And further, as the pieces of ground and others hereby disponed are so disponed for the purpose of adding to or extending the grounds already attached to, and for increasing the amenities of Buchanness Lodge, it is hereby expressly provided and declared, that the said pieces of ground and others hereby disponed shall continue and in all time coming remain attached to, and shall not be separated from Buchanness Lodge and grounds, and the said James George Ferguson Russell and his foresaids shall not be entitled to dispone, assign, or gratuitously convey the said pieces or portions of ground hereby disponed or any part thereof, except as a part of and along with the said lodge and grounds, and the same shall in all time coming descend to and be acquired by the heirs and successors of the said James George Ferguson Russell in the said lodge and grounds: … All which conditions, &c., are hereby declared to be real burdens affecting the said pieces of ground and others hereby disponed, &c.,… And it is hereby expressly provided and declared that if the said James George Ferguson Russell or his foresaids shall contravene or fail to implement any of the conditions, provisions, and obligations herein written, this present right and all that may have followed thereon shall, in the option of the said William Aiton and his foresaids, become null and void, without declarator or other process of law to that effect, any law or practice to the contrary notwithstanding; and the said James George Ferguson Russell and his foresaids shall admit, lose, and forfeit all right and interest in the ground hereby feued, and buildings thereon, which shall thereupon revert to the said William Aiton and his foresaids free and disencumbered of all burdens whatsoever, in like manner as if this feu-right had never been granted.” … “For which causes, and on the other part, the said James George Ferguson Russell binds and obliges himself, and his heirs, executors, and successors whomsoever, to make payment to the said William Aiton, and his heirs and assignees, of the sum of £117, 15s. sterling yearly, being at the rate of £12 per imperial acre, in name of feu-duty, for the said pieces of ground and others hereby disponed, and that at the term of Martinmas yearly, beginning the first term's payment thereof at the term of Martinmas next, 1879 for the year ending at that date, and so forth yearly in all time thereafter; … and further, the said James George Ferguson Russell binds and obliges himself and his foresaids to implement and perform the whole other prestations, conditions, and provisions herein contained, incumbent on them.” The feu-duty was duly paid to Martinmas 1886.

Mr Russell died on 15th April 1887, and there being no heirs of his body his younger and only surviving brother Colonel Frank Shirley Russell, his heir at-law, succeeded to the entailed estates of Aden and others, including Buchanness Lodge. Mr Russell left no other heritage except the said feu.

Colonel Russell refused to take up the said contract of feu, or to implement the obligation therein.

Mr Aiton raised the present action against John Duguid Milne and others, James Russell's executors, concluding for payment of (1) the sum of £117, 15s. in name of feu-duty due at Martinmas 1887 and interest, or of £50 (the proportion thereof accruing between Martinmas 1886 and 15th April 1887) and interest; (2) of £2000 of damages for breach of contract.

The pursuer averred that by the feu-contract it was provided that the lands disponed should in all time coming descend to and be acquired by the heirs and successors of James Russell in the lodge of Buchanness which was held by him at the date of the feu-contract under a strict entail. In consequence of the declinature of Colonel Russell to take up the feu, the pursuer had called upon the executors of the deceased to make payment of the feu-duties due under the said contract, and also either to take up the said contract of feu or to pay damages. By the breach of the said feu-contract the pursuer has sustained loss and damage to the extent of £2000.

The defenders averred that the clause of payment of feu-duty was in the usual words of style, as given in the last two editions of the Juridical Styles, and that, according to inveterate practice, it imported after the death of the vassal no obligation on his executors for payment of the feu-duty in the future. They denied the liability which the pursuer sought to impose upon them, and they tendered payment of £50 in full of the conclusions of the summons.

The pursuer pleaded, inter alia—“(1) The defenders as executors foresaid are due and resting-owing to the pursuer the feu-duty payable for year ending at Martinmas last to the superior under the said feu-contract, or at least the proportion thereof to the date of Mr Russell's death. (2) The defenders as executors foresaid are liable

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to the pursuer in implement of the obligations in his favour contained in the foresaid contract of feu. (3) In consequence of the breach of said contract as condescended upon, the said defenders are liable to the pursuer in damages as concluded for.”

The defenders pleaded, inter alia—“(1) The averments of the pursuer are irrelevant, and insufficient to support the conclusions of the summons. (2) On a sound construction of the feu-contract libelled, the present defenders are not liable for any feu-duties after the death of the vassal, the late Mr Russell. (4) No damages are due, in respect that there has been no breach of contract or fault on the part of the late vassal or the present defenders, and separatim, that the pursuer has suffered no damage.”

On 12th June 1888 the Lord Ordinary ( Kinnear) decerned against the executors for payment of £50, the amount of feu-duty which became due during the lifetime of the deceased vassal; quoad ultra he sustained the first and second pleas-in-law for the defenders, and assoilzied them from the conclusions of the action, and found them entitled to expenses.

“ Opinion.—This action is founded upon a feu-contract between the pursuer and the late Mr James Russell of Aden, in Aberdeenshire, by virtue of which Mr Russell held certain lands under the pursuer from 1879 till his death on 15th April 1887. The pursuer avers that the heir of line of the deceased vassal has refused to take up the feu, or to perform the obligations incumbent on the vassal, and in consequence of this declinature he claims a right to recover from the defenders, as the late Mr Russell's executors, the feu-duty which fell due at Martinmas 1887, the term following their author's death, and £2000 as damages for breach of contract.

I do not think it doubtful that the vassal's executors are liable for the feu-duties accruing due during his lifetime, and I shall accordingly give decree for £50, which is admitted to be the proportion of the feu-duty payable at Martinmas 1879, corresponding to the period of Mr Russell's survivance of the last term. But I think it equally clear in law that no action lies against the executors, either for feu-duties accruing due since the last vassal's death, or for damages in respect of the heir's failure to enter.

The obligation for payment of the feu-duty is in the usual terms. The feuar binds himself and his heirs, executors, and successors whomsoever, and there can be no question as to the construction of such an obligation in a feu-contract. It must be read, as the Lord President explains in The Police Commissioners of Dundee v. Straton, 11 R. 590, as an obligation on the original feuar himself, ‘so long as he remains vassal and lives, and after his death on his heirs and executors, for payment of arrears, and on his successors in the feu for payment of the feu-duty in the future.’ It is possible for the feuar to bind his heirs, executors, and successors so as to make them all liable, jointly and severally, to fulfil the whole obligations of the feu, and the case just cited is a good instance of such a contract. But in the present case there is no room for a construction which would make the several successors of the original feuar liable singuli in solidum. The feuar binds himself, so long as he lives and continues to be the vassal in the feu, in the whole prestations of the contract; he binds his successor in the feu in like manner in the whole obligations of the contract after his death; and he binds his heirs and executors for the arrears which may be due at his death, and for nothing more. The pursuer's counsel accordingly did not maintain in argument that the executors would continue liable along with the successor in the feu right if the latter had completed a title and entered with the superior. But if they are not liable jointly with the heir of the investiture, there appears to me to be no ground in law upon which they can be made liable for future prestations at all. The several liabilities of the successor in the feu on the one hand, and the personal representatives of the deceased vassal on the other, are perfectly clear and distinct; and if there be no joint liability, I am unable to see any reasonable ground for subjecting representatives who cannot succeed to the feu to the liabilities attaching only to the vassal.

But it is said that there is no successor in the feu, because the heir of the investiture declines to take up the estate, and therefore that the representatives of the first vassal must be liable for the feu-duties, because his liability can only be extinguished delegatione by the substitution of a new vassal in his room. I know of no authority for this proposition. It is not in my opinion supported by the case of Hyslop v. Shaw, on which the pursuer's counsel relied. It was held in that case that an entered vassal continues liable for feu-duties, even after he has sold the lands, until a new vassal shall have entered with the superior. But the ground of judgment was that the disponer continues vassal until the entry of the disponee, and therefore cannot escape from the liabilities attaching to that character. This is perfectly consistent with the doctrine laid down by the Lord President in the case of Straton, that the original feuar remains liable ‘so long as he lives and continues vassal,’ but he ceases to be vassal when he dies. His death vacates the feu, and the whole right and liabilities of the feu-contract or feu-charter, if he has not disponed the estate during his life, thereupon pass to the heir of the investiture. No one else can take the place of the deceased vassal, or be affected by liabilities which are inseparable from the tenure. If the heir does not choose to enter, the superior had his remedy by declarator of non-entry under the old law, and he has an analogous remedy under the Statute of 1874. But there is no authority in principle or precedent for sustaining a personal action againt representatives who have no right to the character of vassal, and no title to take up the feu. The only ground on which such an action could be maintained is that of personal obligation imposed upon the deceased vassal's representatives by a special stipulation for that purpose. Whether there is such an obligation in any particular feu-contract is a question of construction, and in the present case the construction of the contract does not appear to me to be doubtful.

I am unable to follow the reasoning upon which it is proposed to subject the defenders in damages. If they are liable for feu-duties, their liability must be limited to the amount actually

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due. If they are not liable, they have committed no breach of contract.”

The pursuer reclaimed, and argued—The claim which the pursuer here made was reasonable, and was in its form of damages the only remedy which he had against the vassal's executry estate. An analogy could be drawn for a claim of this kind from leases, the result of the law as to which was that a tenant in binding himself bound his estate after his death— Bethune v. Morgan, December 16, 1874, 2 R. 186. Leases and feu-contracts were both personal contracts, and it had been held in such cases that the liability of the tenant only ceased delegatione— Skene v. Greenhill, May 20, 1825, 4 Sh. 25. But when there was no delegation an opposite rule prevailed— Hyslop v. Shaw, March 13, 1863, 2 Macph. 535. The bargain undertaken by the deceased could be implemented by his rich estate, or it could pay damages for breach of contract— Abercorn v. Marnoch's Trustees, June 26, 1817, 19 F.C. 364. There was in the present case a double liability and a double contract— Hunter v. Boog, December 16, 1834, 13 Sh. 205. There was in the present case no one the superior could go against by virtue of his tenure, but he could go against the executors of the deceased in virtue of the contract— Burns v Martin, February 14, 1887, 14 R. (H. of L.) 20; Stewart v. M'Callum, February 14, 1868, 6 Macph. 382; King's College of Aberdeen v. Hay, March 11, 1852, 14 D. 675; Stair, ii. 3, 34; 2 Bankton, 144. It was urged by the other side that no case could be shown in which a demand similar to the present had been made, but that was no satisfactory answer, for in the case of Hyslop, supra, no parallel case was cited, and yet the decision was in favour of the superior. In cases like the present a distinction was to be drawn between the feudal relation and the personal contract— Prudential Assurance Company v. Cheyne, June 4, 1884, 11 R. 871.

Argued for the defenders—The defenders' liability here was quite limited in its character, and was settled by the case of The Police Commissioners of Dundee v. Straton, February 22, 1884, 11 R. 590; they were bound for the feu-duty due at the death of the vassal, but for no more. The defenders had no right to make up a title to these subjects, and if Russell had disponed them to them, he would by so doing have broken the feu-contract. The pursuer was therefore seeking to make the defenders liable in feu-duty for a subject from which they never could derive any benefit. The words in the feu-contract imported no higher liability than would have been incurred under an ordinary feu-charter—Jur. Styles, vol. i. (3rd ed.) p. 32. Divestiture terminated liability. There were two kinds of divestiture—(1) by devolution, (2) by death—Duff's Feudal Conveyancing, p. 133. As the defenders were not the successors of the vassal in the feu, they were not liable in feu-duties after the deceased's death, and it was absurd to suggest that any obligation lay upon them to provide a vassal in all perpetuity— Peddie v. Gibson, February 27, 1846, 8 D. 560. No analogy could be drawn for the case of leases— Scott's Executors v. Hepburn, June 14, 1876, 3 R. 816; M'Callum v. Stewart, February 17, 1870, 8 Macph. (H. of L.) 1. It had never been decided that when a vassal died the superior had two remedies, one against the land and another against the executors. The tenure ended with the vassal's death as effectually as it did inter vivos by the entry of a new vassal, and all obligations depending on the tenure ended with it— Brown's Trustees v. Webster, March 11, 1852, 14 D. 675. The case of Hyslop, supra, on which the pursuer so much relied, could not be taken as settling that a landlord had the right to go against his tenant's executors in implement of the prestations of the lease; the question was left open, but the law of leases did not affect the present question as there was no reddendo in a lease, only a personal obligation.

At advising—