Scottish Court of Session Decisions

This was an action of maills and duties brought by the trustees of the deceased William Nelson, printer and publisher in Edinburgh, as creditors in a certain bond and disposition in security in their favour dated and recorded 25th May 1891.

Included in the subjects first disponed in security by the said bond and disposition in security, was the superiority of a piece of land known as Kevockmill Bank, which formed part of the lands of Kevockmill. The present action was brought against (1) Mrs Isabella Currie or Jameson or Galbraith, widow, sole disponee and universal legatory of the late Dr Jameson, who was at his death vassal in a portion of this piece of land, as herself vassal in or proprietor of said portion and as representing Dr Jameson; and (2) Miss Jean Tod, heritable creditor in possession of another portion of said piece of land, in virtue of a decree of maills and duties in her favour. The action concluded that these defenders should be ordained conjunctly and severally to pay to the pursuers the maills and duties payable by them in respect of their possession of said lands, videlicit, the feu-duties payable in respect of their feus, at least so much thereof as would satisfy and pay the balance of principal and the interest and penalties due under the bond and disposition in security in favour of the pursuers.

The bond and disposition in security contained a clause assigning rents and feu-duties and casualties.

The debtors in the bond, who were the superiors of the piece of ground above referred to, had been sequestrated, and a sum of £6000 of principal due under the bond still remained unpaid, and also the interest due thereon since the term of Whitsunday 1894, up to which term the interest had been duly paid.

The piece of land in question was originally feued out in 1827, subinfeudation being expressly prohibited, and the yearly feu-duty was fixed at £69, 15s. 9d. It had ultimately come to be divided into four parts, of which the first belonged to the late Dr Jameson, the second to the late Colonel Pullan (being the portion possessed by Miss Jean Tod as heritable creditor in possession), the third to the North

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BritishRailway Company, and the fourth to John Kolbe Milne. No allocation of the cumulo feu-duty of £69, 15s. 9d. had ever been made among these portions with the exception of the portion belonging to John Kolbe Milne, but the other feuars had only been in use to pay a sum proportionate to the part owned by each, which sums, together with that payable for Mr Milne's portion, made up the amount of the cumulo feu-duty. Decree of maills and duties had already been obtained by the pursuers against the North British Railway Company and Mr Milne.

Mrs Galbraith and the heir of Dr Jameson had both renounced the portion of the piece of land which had belonged to him. The pursuers restricted the conclusions of the summons, so far as directed against Mrs Galbraith, to the conclusions against her as representing her deceased husband Dr Jameson, and did not ask any

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decree against her personally as vassal in or proprietor of the land at Kevock, and Mrs Jameson allowed decree to pass against her as restricted.

The pursuers pleaded, inter alia—“(1) The said balance of £6000 of the principal sum contained in the foresaid bond and disposition in security, with interest and penalty as condescended on, being justly due and resting-owing to the pursuers, they are entitled to enter into possession of the said lands and others described in the said bond and disposition in security, and to draw the rents and duties thereof. The defenders Mrs Isabella Currie or Jameson or Galbraith and Jean Tod being vassals in or proprietors of feus of portions of the said lands or others, or representing such vassals or proprietors, the pursuers are entitled to decree against them respectively for the maills and duties payable by them.”

Defences were lodged for Miss Jean Tod. She pleaded, inter alia—(1) No title to sue; and (2) The action is incompetent and ought to be dismissed.

On 27th May 1896 the Lord Ordinary ( Stormonth Darling), after a hearing in the Procedure Roll, issued an interlocutor by which he found that the pursuers had no title to sue the action, and therefore dismissed the action and decerned. He added the following opinion:—

Opinion.—“I am of opinion that this case is governed by the case of Prudential Insurance Company v. Cheyne, 11 R. 871, which decided that neither a superior nor his assignee has any title to pursue an action of maills and duties for recovery of feu-duty. The ratio decidendi was that an action of maills and duties is one by which the pursuer seeks to enter into possession of a heritable subject, and that a superior is not entitled to possession so long as the feu subsists. He may irritate the feu, or he may have recourse to the action provided by the Act of 1874 as a substitute for a declarator of non-entry, but he cannot take possession by an-action of maills and duties.

The distinctions which the pursuer attempts to draw between that case and the present are—(1) That he is not the superior or the assignee of the superior, but a heritable creditor of the superior; and (2) that he is claiming not the rents of the subjects payable by tenants, but merely the feu-duty payable by the vassal. It does not seem to me that these are distinctions which affect the principle of the Prudential case.

It is true that the heritable creditor of a proprietor may have a right of action not competent to the proprietor himself. Thus a creditor under a bond and disposition in security may bring an action of maills and duties while his author, the owner of the dominium utile, cannot. But that is because the latter does not require such an action to give him a title of possession. In the case of Scottish Heritable Security Company v. Allan, 3 R. 333, the late Lord President, at page 340, speaking of the pursuers in that case, who were disponees under an ex facie absolute disposition, said—‘They required no process of law to enable them to enter into possession, as it is called, and if they had proposed an action of maills and duties, for example, for the purpose of enabling them to uplift the rents, it would have been an idle formality, and, indeed, incompetent, because it is only an incumbrancer that requires to use a process of maills and duties in order to give him a title in a question with the tenant to uplift the rents.’ Now, if the ratio decidendi in the Prudential case had been that a superior required no process of law to give him possession, I could have understood the analogy. But the ratio was that he had surrendered possession and could not resume it, standing the feu-right.

Neither can it matter that the pursuer, so far as his petitory conclusions go, asks only for the feu-duty and not for rents. Equally he claims (as in his first plea-in-law) that he is ‘entitled to enter into possession,’ and that is a right which the Prudential case negatives.

There is a real question between the parties, and there must, of course, be some competent mode of raising it, but this form of action, I think, is not. That question is, whether the compearing defender, who is, and has been since 22nd November 1893, in possession of one of four feus under a decree of maills and duties, is liable as such in the feu-duty of the whole four, so far as not allocated with consent of the superior. The defender has several answers to this demand, one of which is that the vassal in No. 4 (the condition of which gives rise to the question) has renounced his feu, and consequently that the relation of superior and vassal as regards that plot of ground no longer exists.

I heard some argument on these various points, hut it would be premature to express any opinion on them, if this be, as I think it is, an action which must be dismissed.”

The pursuer reclaimed, and argued—This case could be distinguishable from Prudential Assurance Company, Limited v. Cheyne, &c, June 4, 1884, 11 R. 871, and the Lord Ordinary was wrong in supposing that that case ruled the present. There the pursuer was the superior's assignee; here they were his creditors. There what was sought was decree against the tenants of vassals for payment of their rents; here it was decree against the vassals for payment of their feu-duties. It did not follow that because a superior's assignee was not entitled to decree of maills and duties against the vassal's tenants, that therefore a superior's creditor was not entitled to such a decree against the vassals for payment to him of the feu-duties to which he held a special assignation. The argument that the assignee was in precisely the same position as the superior, which was an element in Cheyne, was inapplicable here, for admittedly the creditor was not. On the one hand, he could not irritate the feu or obtain a declarator of non-entry, remedies which were open to the superior, and were held to be his proper remedies in Cheyne, and if this action were incompetent he had no continuing remedy for recovery of the feu-duties which were admittedly due to him. On the other hand, it was unquestionably no argument against a creditor's right to an action of maills and duties that his debtor and author, the owner, had no such right. As to the objection that neither the superior nor anyone having right from him could interfere with the vassal's possession, what was sought here was not actual possession of the lands, but civil possession merely to the effect of receiving payment of feu-duties. On principle there was no reason why the action should not be allowed. The expression maills and duties was not confined to rents, but included feu-duties also.—See Boss v. Governors of Heriot's Hospital, June 6, 1815, F.C., argument at p. 401, and per Lord Justice-Clerk at p. 411; affirmed 6 Paton's Appeals, 040. All that was really asked here was that the Court should ordain the vassals to pay to the pursuers the feu-duties to which under their assignation they had an undoubted right of exactly the same nature as that of the creditor of an owner of a dominium utile to the tenant's rents. If the action was competent against a vassal, then it was also competent against the creditor of a vassal in possession under decree of maills and duties, and intromitting with the rents.— Liquidators of City of Glasgow Bank v. Nicolson's Trustees, March 3, 1882, 9 R. 689, especially per Lord President Inglis at page 093. If Miss Tod ceased to intromit with the rents the decree against her would become inoperative.

Argued for the defender—This case was ruled by the case of Cheyne, cit. There was no distinction between the case of a superior's assignee and the case of his disponee in security. The pursuers here had another remedy open to them, namely, an ordinary petitory action, but the present action, which was an action of maills and duties, and decree in which would have certain special technical effects, could not be treated as if it were an ordinary petitory action. Even if the vassals were liable under this action, the creditor of a vassal was not. On principle there was a distinction between this case and that of a creditor with a security over a dominium utile, for a proprietor of a dominium utile could order his tenants to pay to his creditor, and a decree of maills and duties merely ordered something to be done which the landlord might have ordered himself, but a superior could not order his vassals to pay to his creditor, and decree of maills and duties was therefore incompetent.

At advising—