BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grant's Trustees v. Leith Hay [1903] ScotLR 40_658 (02 June 1903) URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0658.html Cite as: [1903] SLR 40_658, [1903] ScotLR 40_658 |
||
[New search] [Printable PDF version] [Help]
Page: 658↓
In 1828 two proprietors, one of whom was the heir of entail in possession of lands astricted to a mill belonging to the other, for the purpose of preventing the delay and expense attendant upon prosecuting to a conclusion certain proceedings which had been initiated under the Thirlage Act 1799 for commutation of the thirlage, entered into a submission, under which the arbiter pronounced a decreet-arbitral finding that, in lieu of the mill multures and other prestations then exigible by the proprietor of the mill, and as compensation for the said right of thirlage, certain annual payments of money and meal should be made by the proprietor of the astricted lands to the owner of the mill. The payments were regularly made down to 1892. The astricted lands were held in strict entail by four successive heirs of entail down to 1900, in which year they were duly disentailed.
Held that the present proprietor of the mill was not entitled to exact the annual payments in question from the present proprietor of the astricted lands, in respect (1) that the submission and decreet-arbitral of 1828 were not binding upon the subsequent heirs of entail in the astricted lands who were not parties thereto, and (2) that the origin of the annual payments being admittedly referable to the contract and decreet-arbitral of 1828, which was not binding on the owner of the astricted lands, the presumption that the payments were attributable to a valid title was excluded, and that therefore the continuance of the payments for a period exceeding forty years could not create a prescriptive right to exact such payments.
This was a special case, in which the parties were (1) the testamentary trustees of the late Robert Grant of Druminnor, Aberdeenshire, proprietors of the estate of Druminnor and, inter alia, of a thirl mill situated on said estate, known as the mill of Barflatt, and mill lands and multures thereof; and (2) Charles Edward Norman Leith Hay of Rannes and Leith Hall, Aberdeenshire, proprietor of the lands of Kirkhill, including
Page: 659↓
the lands of Towie of Clatt, which with other lands, known as Westhills and Marchmar, were at and prior to the date of the submission and decreet-arbitral after mentioned astricted to the said mill of Barflatt. The fabric of the mill of Barflatt was destroyed by fire in 1874, and had not been rebuilt.
From 1798 to 1900 the lands of Kirkhill and others were held under and in virtue of a deed of entail, the heirs of entail who possessed the said lands, as heirs of entail in possession during these years, being as follows:—(1) From 1798 to 1838 Major-General Alexander Hay of Rannes; (2) from 1838 to 1862 Major, afterwards Sir Andrew Leith Hay, of Rannes; (3) from 1862 to 1897 Colonel Alexander Sebastian Leith Hay; and (4) from 1897 to 1900 the said Charles Edward Norman Leith Hay, the second party. On 10th November 1900 the said entailed lands and estate of Kirkhill and others were disentailed under the authority of the Court of Session at the instance of the second party, and from that date the estate had been possessed by him as fee-simple proprietor thereof.
In 1825 General Alexander Hay, at that date heir of entail in possession of Towie of Clatt, Harry Leith Lumsden, at that date the proprietor of Westhills and Marchmar, and Robert Grant senior, at that date proprietor of Druminnor, including the mill of Barflatt, agreed that the said Robert Grant senior should apply by petition to the Sheriff of Aberdeenshire in terms of the Statute 39 Geo. III. cap. 55, to have the thirlage of the said lands of Towie of Clatt and Westhill and Marchmar to the said mill of Barflatt commuted into an annual payment. In pursuance of this agreement Robert Grant senior presented a petition to the Sheriff in terms of the statute, to which General Alexander Hay, as heir of entail in possession of the lands of Towie of Clatt, was, inter alios, called as respondent. The petition was served and certain preliminary steps under it were taken, but it was not proceeded with, and no decree was ever pronounced therein. Thereafter the said General Alexander Hay and Major Andrew Leith Hay, his eldest son, and heir-apparent under the entail, and the said Harry Leith Lumsden, on the one part, and the said Robert Grant senior, on the other part, considering it expedient to prevent the delay and expense attendant upon carrying on said suit before the Sheriff, and with the view of bringing the same to a speedy conclusion, entered into a submission, dated 2nd, 8th, and 10th May 1828, whereby they appointed William Leslie of Warthill sole arbiter, mutually chosen by them, to settle, ascertain, and determine the whole rates, both meal and money prestations, to be paid and performed in all time coming by the occupiers of said lands under thirlage as aforesaid, beginning with crop 1826.
William Leslie accepted of the said submission, and thereafter pronounced and issued a decreet-arbitral thereunder, dated 20th June 1828. No registration of this decreet-arbitral was made in the Register of Sasines. By this decreet-arbitral Mr Leslie found and decerned that in lieu of the mill multures, services, and other prestations then exigible from the said thirled lands of Towie of Clatt the said lands should in future be subject to the payment of £5 sterling in money and 8
bolls of meal, at 8 stone per boll, Amsterdam weight, yearly, and in like manner found and decerned that the lands of Westhills and Marchmar should be subject to the payments therein specified, and in consequence thereof that the said whole astricted lands should be freed and relieved from all thirlage and astrictions to the said mill of Barflatt, which several annual payments he did thereby declare to be a just, fair, and equal value and compensation for the said right of thirlage to the said Robert Grant senior, and of all and every service, prestation, or restriction thereto annexed or thitherto enjoyed by him as proprietor of the said mill, and did appoint and ordain the same, beginning with crop 1826, to be paid to and accepted by him in terms of the foresaid Statute 39 Geo. III. cap. 55. 1 2 From and after the date of this submission no insucken multures or services were paid or performed to the proprietor of the mill of Barflatt in respect of the said lands of Towie of Clatt, but the heirs of entail in possession of these lands paid yearly to the proprietor of Druminnor, from 1828 down to 1891, the commutation payments of £5 sterling and 8
bolls of meal before specified, fixed by the said decreet-arbitral as exigible in respect of these lands. The last payment was made in the year 1892 for crop 1891. Since then no payments had been made, and the second party had refused to make any further payments of the said amounts, maintaining that he was not liable therefor. 1 2 The first parties contended that they were entitled to exact the said commutation payments from the second party.
The second party contended that he was not bound to pay the same, in respect that the submission and decreet-arbitral did not extinguish the servitude of thirlage to the like effect and extent as if proceedings under the foresaid statute 39 George III. cap. 55, had been duly followed out; that the said General Alexander Hay, as heir of entail in possession of the said lands of Towie of Clatt, and the said Major Andrew Leith Hay, his eldest son, had no power, by submission or other voluntary transaction, to subject the said entailed lands of Towie of Clatt to a permanent money burden in exchange for a servitude of thirlage, and that the said mill of Barflatt was non-existent, and had not been rebuilt since it was destroyed by fire in the year 1874.
The question of law for the opinion of the Court was as follows—“Are the first parties entitled to exact from the second party the said payments of £5 sterling and 8
bolls of meal yearly?” 1 2 Argued for the first parties—The contract entered into in 1828, by which the predecessor of the second party, at that time the heir of entail in possession, with the concurrence of his eldest son, the heir apparent,
Page: 660↓
agreed with the predecessor of the first parties, the owner of the thirl mill, that the thirlage should be commuted for an annual payment, to be fixed by a named arbiter, was binding upon subsequent heirs of entail. It was unnecessary that the parties to the agreement of 1825 should go through the whole of the litigious proceedings contemplated by the Statute 39 Geo. III. c. 55. What was done in 1828 was merely to substitute an arbiter for a jury. The parties were compulsorily before the Court, and it was within their power to work out the question at issue between them in the way they had adopted. This was a valid contract, and the award was binding on both the parties and their successors. A succeeding heir of entail represented his predecessor, and was bound by the acts of his predecessor in the case of administrative obligations relating to the estate which were not in contravention of the entail or in mala fide— Innes v. Hepburn, May 18, 1859, 21 D. 832. This was an administrative arrangement, and not an alienation. The contract, followed by the submission and decreet-arbitral, did not extinguish the servitude, but merely liquidated the annual prestations in respect of it by fixing a definite annual payment. The effect was to provide for the payment of dry multures in future, and the payments made down to 1892 were really dry multures— Porteous v. Haig, January 15, 1901, 3 F. 347, 38 S.L.R. 258. The decision in Forbes' Trustees v. Davidson, July 14, 1892, 19 R. 1022, 29 S.L.R. 887, proceeded on the special ground that it was a condition of the right to exact the payments found due by the arbiter that the mill should be working. In this case there was no such condition. Even if the contract was not binding on the second party, the fact that the payments had been made annually by the second party and his predecessors without question for seventy years gave the first parties a good prescriptive right to exact the payments— Stuart v. Erskine, 1741, M. 16,020. There was in the agreement between the parties' authors at least a title ex facie good, which furnished a basis for the running of prescription. Dry multures continued to possess many of the attributes of servitudes— Kinnaird v. Drummond, 1675, M. 10,862. Prescription was sufficient to base a right of exacting dry multures, and the continued existence of the mill was immaterial in the case of dry multures—Ersk. ii., 9, 8; Bell's Prin. section 1018; Stuart v. Erskine, 1741, M. 16,020. As there was no question of singular successors, it was unnecessary to record the decree of commutation in the Register of Sasines. Even under the Act 39 Geo. III. c. 55 the failure to record a decree of commutation of thirlage did not involve the nullity of the decree— Duchess of Sutherland v. Reid's Trustees, February 25, 1881, 8 R. 514, 18 S.L.R. 329. In any view, if what was done here was regarded as merely the basis of prescription, there was no need of recording. Argued for the second party—The parties to the transaction in 1825, instead of proceeding under the Act 39 Geo. III. c. 55, had entered into a personal and voluntary agreement for the commutation of the thirlage by a submission to an arbiter. The result was a personal obligation on the heir of entail then in possession, which was not binding on his successors. The position was similar to the cases under the Lands Clauses Consolidation Act, in which it was held that heirs of entail were not bound where the statutory procedure was not followed— North British Railway Company v. Renton, January 15, 1864, 2 Macph. 442. In order to bind subsequent heirs the procedure of the Act must be followed strictly, and the attempt of the arbiter to subject the entailed lands to the real burden of a permanent money payment in commutation of the servitude of thirlage, irrespective of whether the mill continued to exist, could have no effect against successors in the entailed estate. Further, there was no registration in the Register of Sasines, so that this was an attempt to create a real burden without infeftment. The fact that payments had been regularly made under the award for more than forty years, probably in ignorance of the legal rights of the parties, was no reason for holding the second party bound. The origin of these annual payments was admittedly the contract of 1828. That being so, the annual payment was explained, and there was no room for the operation of prescription, because the first requisite for prescription was wanting, viz., a title to which the possession ( i.e., the payments) was referable. The fact that the payments had their origin in this contract, which was insufficient to bind successors, made it impossible to assimilate the payment to dry multures. The cases referred to on the subject of such multures had therefore no application in the present case. The first parties could not maintain that the right of thirlage could be enforced, since the mill had been destroyed in 1874 and had not been rebuilt.
At advising—
The first parties, as testamentary trustees of the late Robert Grant, are proprietors of the estate of Druminnor, in the county of Aberdeen, including a thirl mill on the estate known as the mill of Barflatt, and mill lands and multures thereof. The fabric of the mill was destroyed by fire in the year 1874, and it has not been rebuilt.
The second party is proprietor of the estates of Rannes and Leith Hall, in the
Page: 661↓
The lands of Kirkhill belonging to the second party include the lands of Towie of Clatt, which with other lands known as Westhills and Marchmar, belonging to Mr Lumsden of Auchindoir, were at and prior to the date of the submission and decreet-arbitral after mentioned astricted to the mill of Barflatt.
In 1825 the heir of entail in possession of Towie of Clatt and the proprietor of Westhills and Marchmar agreed with the proprietor of the mill of Barflatt that a petition should be presented to the Sheriff of Aberdeen in terms of the Act 39 Geo. III. c. 55 (the Commutation of Thirlage Act of 1799) to have the thirlage of the lands of Towie of Clatt and Westhills and Marchmar to the mill of Barflatt commuted into an annual payment, and a petition under the Act was duly presented, but it was not proceeded with, and no decree was ever pronounced under it. Instead of carrying the proceedings under the Act to a conclusion the owners of the astricted lands and the eldest son and heir-apparent under the entail of the astricted lands of Towie of Clatt on the one part, and the proprietor of the mill on the other part, entered into a submission dated 2nd, 8th, and 10th May 1828, whereby they appointed William Leslie of Warthill sole arbiter mutually chosen by them to settle, ascertain, and determine the whole rates, both meal and money and prestations to be paid and performed in all time coming by the occupiers of the lands under thirlage as aforesaid beginning with crop 1826. This submission seems to have contemplated rather a liquidation or ascertainment of the liabilities under the thirlage as a continuing servitude than the extinction of that servitude, but the parties and the arbiter appear to have interpreted it as contemplating the extinction of the servitude in consideration of certain annual money payments.
William Leslie accepted of the submission, and thereafter pronounced and issued a decreet-arbitral thereunder, dated 28th June 1828. By it Mr Leslie found and decerned that in lieu of the mill-multures, services, and other prestations then exigible from the thirled lands of Towie of Clatt, these lands should in future be subject to the payment of £5 sterling in money, and 8
From the date of the submission and decreet-arbitral no insucken multures or services were paid or performed to the proprietor of the mill of Barflatt in respect of the lands of Towie of Clatt, but the heirs of entail in possession of these lands made yearly to the proprietor of Druminnor from 1828 down to 1891 the payments of £5 sterling and 8
The first parties contend that they are entitled to exact the payments from the second party, while he maintains that he is not bound to make them. He submits that the heir of entail in possession of the lands of Towie of Clatt and his eldest son had no power by submission or other voluntary transaction to subject these entailed lands to a permanent money burden in exchange for a servitude of thirlage, and that no claims could now be made in respect of that servitude, in respect that the mill of Barflatt is non-existent, not having been rebuilt since it was destroyed by fire in 1874.
I am of opinion that the contention of the second party is well founded. The question may be tested by supposing that such a submission or voluntary transaction had been entered into without any proceedings having been instituted under the Thirlage Act. and it seems to me that any burden of the nature in question attempted to be imposed upon the lands by an heir of entail in possession would have been ineffectual against the subsequent heirs, and might possibly have formed a ground for the next heir claiming right to the lands in respect that the heir in possession had incurred an irritancy. A commutation under the Act derives its sole efficacy from the Act, and where the procedure provided by the Act is not followed out modo et forma, but a voluntary agreement is substituted for the statutory procedure, it appears to me that such a voluntary agreement has no binding force or effect against subsequent heirs of entail.
The first party maintained that even assuming that the arrangement would have been invalid apart from prescription, it has been validated by the fact that payments were regularly made under the award for a period exceeding forty years. It appears to me, however, that the agreement, the nature and character of which are well known, does not afford a habile title for such prescription. The first party also maintained that the only deviation
Page: 662↓
The first parties relied upon the case of
Stuart v. Erskine, M. 16,020, November 17, 1741, in which it was held that tenants of astricted lands not having been in use to come to the mill for the space of forty years, but having been in use to pay a dry multure for bear, immunity was acquired by the negative prescription, except as to the dry multure, and contended that the payments made down to 1891 were of a character similar to the dry multure, and kept the servitude alive. It does not, however, appear to me that the payment of the £5 and the 8
For these reasons I am of opinion that the question put should be answered in the negative.
The second question is whether the first parties have not acquired a prescriptive right to insist upon the continuance of payments which have been made annually without question for nearly seventy years; and if the origin of such payments had not been known and admitted, it might have been a reasonable presumption in law that they were dry multures which the first parties must be supposed to have exacted by virtue of an undoubted right. But to create a prescriptive right, possession and enjoyment must be referable to some title, actual or presumed, sufficient to create the right, and the basis of fact on which the parties are agreed that their legal rights must be determined is that there is no such title and that none such can be presumed. It is part of the special case, to which the parties have agreed, that the payments which are said to
Page: 663↓
I should have had doubts as to the soundness of this argument if it implied that the first parties had lost their right of thirlage by reason of the submission and award, or of the subsequent usage. The second party could not take advantage of the contract and at the same time reject its obligations. But I think no such consequence is involved in the argument. The first parties do not seek to have it found that the right of thirlage still subsists, and they cannot do so at present because they are not in a position to render the corresponding services. Whether, if they were to put themselves in a position to do so, they could enforce the thirlage is a different question, but it is a question which, as I have said, does not arise at present, and I desire to express no opinion upon it, except in so far as it may be necessarily involved in the determination of the question in hand. But it is necessary to see whether the argument we sustain involves an inequitable consequence, and I am of opinion that it does not, because the very same reasoning which gives the second party a good answer to the claim of a prescriptive right to the annual payments of money and grain would afford to the other parties an equally good answer against him if he were to maintain that the thirlage was lost by nonuser during the period from 1826 to 1892. It would be impossible for him to found a prescriptive immunity on a non-user which he must admit was not referable to any discharge or abandonment of the right, but to an agreement, now brought to an end, to substitute a money payment for the actual performance of the thirlage. This is probably not a practical question, and if it became one the second party might for anything I know have a good defence on other grounds. But all that it is necessary to say at present is that neither of the parties can found a prescriptive right upon the actings of parties under the contract which Mr Leith Hay now rejects as not binding upon him.
The Court answered the question in the negative.
Counsel for the First Parties— H. Johnston, K.C.— Cullen. Agents— Tawse & Bonar, W.S.
Counsel for the Second Party— C. K. Mackenzie, K.C.— G. Moncreiff. Agents— Mackenzie, Innes, & Logan, W.S.
