Scottish Court of Session Decisions

By feu-charter, dated 5th December 1822, the President and Governors of Robert Gordon's Hospital in Aberdeen (now known as Gordon's College) disponed in feu to William Willox, wright in Aberdeen, a piece of ground in Woolmanhill and Black-friars Street, Aberdeen, subject to a feu-duty of £20, 3s. Under the feu-charter the casualties due to the superiors payable by heirs and singular successors were untaxed. William Willox took infeftment by means of instrument of sasine, dated 9th and recorded 26th, both days of December 1822.

By disposition, dated 13th September 1828, Willox disponed the said subjects to himself and his wife in conjunct fee and liferent, and to the longest liver of them in fee. Willox died in 1839, survived by his wife, by whom the disposition was recorded on 21st December 1864.

By disposition, dated 20th December 1864 and recorded 24th February 1865, Mrs Willox disponed a portion of the said subjects to the Scottish North-Eastern Railway Company.

By disposition, dated 12th May and recorded 10th July 1871, the Caledonian Railway Company, who had then come in place of the Scottish North—Eastern Railway Company, in virtue of The Caledonian and Scottish North-Eastern Railways Amalgamation Act 1866, sold a portion of the subjects acquired by the Scottish North-Eastern Railway Company from Mrs Willox to Peter Farquharson. This disposition contained a clause of relief of casualties in the following terms:— “And the company binds itself to free and relieve the said disponee and his foresaids of all feu-duties, casualties, and public burdens.” At the date of the disposition William Willox and his wife were dead, and the subjects were in non-entry.

By disposition, recorded on 10th January 1873, Peter Farquharson sold the subjects disponed to him to John Pirie. By disposition, recorded on 24th April 1874, John Pirie sold the subjects to John Florence. By disposition recorded on 3rd June 1876, John Florence sold a portion of the subjects acquired by him to John Dunn, and by disposition, recorded 22nd May 1884, he sold the remaining portion of his holding to William Harvey. By disposition, recorded 21st March 1893, William Harvey sold the portion acquired by him to John Dunn, so that the latter acquired the whole of the subjects successively held by Farquharson, Pirie, and Florence. All these dispositions contained a clause of relief of casualties, &c., in statutory form.

The superiors, the President and the Governors of Gordon's College, having demanded a casualty of a year's rent from John Dunn in respect of the subjects, vested in him as aforesaid, amounting to £60, 8s. 5d., and Dunn having paid the casualty to the superiors, he demanded relief thereof from the trustees of John Florence, in respect of the clause of relief contained in the conveyance in his (Dunn's) favour. Florence's trustees made payment to John Dunn in terms of this demand, and obtained a discharge, dated 17th February 1898. They in turn, with consent of John Pirie's executor, applied to Peter Farquharson for relief in respect of the obligation contained in the disposition by Farquharson in favour of Pirie, Florence's author. Immediately on receiving a demand for relief from payment of said casualty, Farquharson communicated with the Caledonian Railway Company, informing them of the whole circumstances in which relief was claimed from him, and at same time sending them the whole title-deeds for examination. The Railway Company, however, repudiated liability.

An action of relief was thereafter brought in the Sheriff Court at Aberdeen by Florence's trustees against Farquharson. He again communicated with the railway, but they again repudiated any claim of relief. Farquharson being advised that he had no alternative but to defend the action, did so, but decree was pronounced against him by the Sheriff-Substitute. Being advised that the judgment was sound in law, he paid to Florence's trustees (1) the casualty of £60, 8s. 5d.; (2) interest thereon £2, 5s. 8d.; and (3) taxed expenses in the action, £17, 17s. 3d., amounting in all to £80, 11s. 4d. The expense incurred by Farquharson's agent in defending this action was £32,0s.4d.

On 25th November 1898 he raised an action against the Caledonian Railway Company to have it found and declared that the defenders were bound to relieve him of the above sums, and to have the defenders ordained to pay him the total of £112, 11s. 8d.

The defenders averred that the casualty became and was due in consequence of the death of John Florence, who died on 21st August 1892, at which date John Dunn was impliedly entered with the superiors in the whole subjects in which Florence had become impliedly entered as at 1st October 1874, and that the defenders were under no obligation towards the pursuer for relief in respect of the payment.

They pleaded—“(2) The said casualty not being a burden of which the pursuer is entitled to be relieved by the defenders under their disposition, the defenders should be assoilzied, with expenses. (3) On a sound construction of the disposition and of the Conveyancing (Scotland) Act 1874, the defenders are not in the circumstances bound to relieve the pursuer of the sums sued for, or any part thereof.”

On 4th March 1899 the Lord Ordinary ( Kyllachy) found, declared, and decerned in terms of the conclusions of the summons.

Opinion.—“The pursuer in this case sues the Caledonian Railway Company for relief of a composition which he has had to pay to the superior of certain subjects in Aberdeen. These subjects were disponed to the superior so far back as the year 1871, by the Scottish North-Eastern Railway Company, whom the Caledonian Company now represent; and the claim of relief is founded on a clause in the pursuer's disposition whereby the Railway Company

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bind themselves ‘to free and relieve the said disponee and his foresaids of all feu-duties, casualties, and public burdens’— that is to say (expanding the clause in terms of the interpretation clause of the Titles Act), ‘to relieve of all feu-duties or other duties and services or casualties payable or prestable to the superior prior to the date of entry.’

The composition in question was due to the superior at the date of the disposition—that is to say, the subjects were in non-entry when the Railway Company disponed to the pursuer. But it was only the other day that the superior made his demand; and by that time the subjects had undergone various transmissions, the pursuer having disponed to a third party with a clause of relief expressed as in his own disposition, and that third party having again disponed with a similar clause of relief—and so on. The result was that the superior's claim was made against the present owner; and he having sought relief against his immediate author, the pursuer had ultimately to pay. He did so after an action had been brought against him, which he intimated to the Railway Company, and which the latter refused to defend. Consequently the present action includes a demand both for the composition itself, and for the expenses of the unsuccessful defence.

The pursuer maintains that the case is ruled by the well-known case of the Straiton Estate Company v. Stephens, 8 R. 299; and undoubtedly in that case the clause of relief was similar, and was enforced after at least one transmission, and was held to cover both the casualty paid to the superior and the expenses of an unsuccessful defence.

The defenders, however, take two points, which have been ably argued by Mr King.

In the first place, they say that the composition here was truly payable, not in respect of the pursuer's entry, but in respect of the entry of Mr Dunn, the present proprietor, and was not therefore the composition which was due and payable at the date of the pursuer's disposition. As to this argument, I think I need only observe that, in my opinion, it was fully considered and expressly negatived in the case of the Straiton Estate Company. Nor am I able to see that the subsequent case of Mounsey, 12 R. 236, at all affects the authority of that decision. The principle, I take it (and it is a principle recognised in both cases), is just this—that a composition, once it becomes due and payable, remains so until it is demanded and paid; and when demanded and paid is the same composition which has been due all along.

Mr King's other point, which is more open, is this. He pointed out, what is quite true, that the disposition here, differing from that in the Straiton case, was dated in 1871—that is to say, before the Act of 1874—and must accordingly be construed by reference to the old law—the law before the Act of 1874. And his argument was, that under the old law composition was not properly a casualty at all—at all events was not a casualty payable or prestable to the superior, who under the old law had no right to sue for composition, but could only enforce its payment indirectly, viz,, by entering into possession of the lands. In short, the defenders adopt certain views as to the old law expressed by Lord Curriehill as Lord Ordinary in the case of Straiton, and I do not know that their argument can be better stated than we find it stated in Lord Curriehill's note in that case.

Now, having given my best consideration to this matter, I am of opinion that, although the point in question was not in terms decided in the Straiton case, yet having regard to the opinions in that case and the general tenor of the authorities, the casualty here was as much due and payable to the superior at the date of the pursuer's disposition as it would have been if the disposition had been dated subsequent to the Act of 1874. I do not wish to revive an old and forgotten controversy—a controversy which must now, except in the rarest cases, be quite academical. But I must say, with all the respect due to any opinion of Lord Curriehill, especially on questions of this kind, I am unable to agree with the very strict and technical reading which he attaches to the clause of relief contained in this and similar dispositions. I prefer the view indicated by Lord Shand, and expressed and explained at length by Lord Young. I do not think I need do more than refer to Lord Young's opinion, in which I entirely concur. The Straiton Company's case did not, as I have said, decide the point; but, taking the case as open, I am of opinion that the pursuer here has right under his clause of relief to be put in the same position as if the Railway Company had (as they might have been obliged to do at the time) completed their disponee's title by paying to the superior the casualty then due.

The result is that the pursuer gets decree in terms of his summons.”

The defenders reclaimed, and argued—The Lord Ordinary had decided against them because he held that the decision in Straiton Estate Company v. Stephens, December 16, 1880, 8 R. 297, ruled the present case. They submitted it did not, because in Straiton's case the disposition containing the clause of relief was dated after 1874, while in the present case the disposition was dated prior to 1874. Before 1874 a composition was not a casualty payable or prestable until the claim was enforced by the superior in an action of non-entry. The Act of 1874 had changed all that, and had given the superior a right to bring a petitory action for payment of the composition when there was an implied entry under the statute— Campbell v. Stuart, Dec. 11, 1884, 22 S.L.R., opinion of Lord Fraser, 294. Lord Curriehill's opinion in Straiton, 8 R. 302, was to the same effect, and although his judgment as regards the law on the matter subsequent to 1874 had been reversed by the Inner House, no objection had been taken to his opinion with respect to the law prior to 1874.

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Indeed, his opinion on this point received support from Lord Deas ( 8 R. 308), who said that it was the statutory entry provided for by the Act of 1874, which made the casualty a debt due by the vassal. The pursuer's disposition being dated in 1871, and he never having entered with the superior, and having disponed the subjects to Pirie in 1873, composition was not a casualty payable or prestable by him as vassal under the disposition from defenders. It therefore did not fall under the clause of relief in his disposition. In any event the composition now sued for was not paid in respect of the pursuer's entry. It was paid in respect of Dunn's entry, and was thus not the composition due and payable at the date of the pursuer's disposition— Mounsey v. Palmer, December 6, 1884, 12 R. 236. The superior had pretermitted the casualties due by the owners of the property prior to Dunn, and the casualty paid by Dunn was in respect of his own entry. It did not therefore fall under the clause of relief in the pursuer's disposition.

Argued for pursuer—Composition was a casualty of which the defenders were bound to relieve him in terms of the clause of relief in his disposition. The Act of 1874 had made no change in the nature of composition as a casualty, it had only substituted an action of declarator and payment for an action of declarator of non-entry, and decree in the former action operated in the same mode as a decree of non-entry did before 1874, and could not be enforced by personal diligence against the defender—Mowbray's Analysis of the Conveyancing (Scotland) Act 1874, p. 12. The superior was therefore, after 1874, with respect to his claim for composition, in exactly the same position as before. The case of Straiton Estate Company, supra, ruled the present, and the decision of the Lord Ordinary was sound.

At advising—