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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sandeman v. Scottish Property Investment Co. Building Society and Liquidators, and Others [1885] UKHL 850 (29 June 1885) URL: http://www.bailii.org/uk/cases/UKHL/1885/22SLR0850.html Cite as: 22 ScotLR 850, [1885] UKHL 850 |
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Page: 850↓
(Before
(Ante, vol. xx. p. 400, Feb. 21, 1883.)
Subject_Superior and Vassal — Sub-Vassal — Irritancy ob non solutum canonem — Act 1597, c. 250.
Held ( rev. judgment of Second Division) that when a feu right is irritated ob non solutum canonem (whether by virtue of an irritant clause in the feu right or under the Act 1597, c. 250) the right of a sub-vassal to whom the defaulting vassal has granted a sub-feu falls under the irritancy.
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Cassels v. Lamb, March 6, 1885, ante, p. 477, and 12 R. 722, approved.
This case is reported in Court of Session ante vol xx. p. 400, and 10 R. 614.
The pursuer Mr Sandeman appealed.
At the argument their Lordships had before them together with the Cases for the parties the opinions of the whole Judges of the Court of Session in Cassels v. Lamb, cited supra.
At delivering judgment—
Since the passing of the 20th George II., chapter 50, all lands in Scotland (save burgage holdings and a few allodial possessions) have been held in feu-farm from the Crown or from subject-superiors. That Act abolished the military tenure of ward, converting ward into feu holdings, and substituting in the case of land held of the Crown a blench duty, and in the case of lands held of subject-superiors an annual rent or feu-duty, to be modified, failing agreement, by the Court, for the prestations and casualties peculiar to ward holding. In the opinions of some of the Judges composing the minority in Cassels v. Lamb there is much learned discussion regarding the origin and early history of feu rights, their resemblance to the Roman contract of emphyteusis, and other cognate matters; and it seems not to be doubtful that these rights were not, strictly speaking, part of the old feudal system, although they had a recognised existence in the law of Scotland for centuries before the final abolition of military tenure. These investigations are of great antiquarian interest, but they do not in my opinion throw much, if any, light upon the present state of the law.
The effect of progressive legislation upon the position and interests of a superior of lands in Scotland is thus concisely stated by the late Mr Duff, one of the most accurate of recent writers on conveyancing—“The dominium directum or superiority which in the ages of personal military service was the more eminent right is now in substance reduced to a mere security over the lands for a yearly payment by the vassal, and a fine or grassum on the renewal of the investiture, fortified by an express or implied irritancy”(Duff's Feudal Conveyancing, section 39). All the institutional writers, from Lord Stair downwards, are agreed that the annual reddendo payable by the feuar is a debitum fundi, or, in other words, a debt in which the superior is creditor, forming a charge upon the ipsa corpora of the lands feued. That debt is not in any proper sense a burden upon the feuar's right; it represents the estate or real interest of the superior in the lands, and it stands upon his own sasine and not upon his vassal's infeftment. The feu-charter by virtue of which the vassal becomes vested in the dominium utile does not constitute but limits the estate of the superior; and consequently the superior's reddendo, which is in substance a real right reserved to the superiority out of the lands feued, is a heritable estate or interest in the lands paramount to the estate of the vassal.
In the case of modem feus the annual rent or feu-duty reserved by the superior almost invariably represents the whole or a portion of the price in consideration of which he dispones the
dominium utile to his feuar. The appellant in the present case, by a contract of feu dated and recorded in February 1876, disponed in feu-farm to Stiven and Gibson, five or thereby acres of building land in Dundee, with an annual
reddendo of £480 sterling, which at 22
It has not been disputed, either by the Bench or at the bar, that had Stiven and Gibson retained the land thus feued to them in their own hands, the security of the appellant for these arrears as well as for future duties would have extended to each and every part of the
corpus of the land, and that the appellant would have had his remedy against the land either by poinding of the ground or by declarator of irritancy
ob non solutum canonem. But Stiven and Gibson made two sub-feus of portions of the five acres, one of 22 poles 18
The legal propositions for which the respondents argued appear to me to amount in substance to this, that the character of the superior's reserved right undergoes a radical change whenever the vassal, instead of disponing, sub-feus the land without the superior's consent; that the superior's right of irritancy for non-payment of his reddendo then ceases to attach to the lands which he feued, and attaches only to the mid superiority created in the person of his vassal;
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I have been unable to find in the law of Scotland either principle or authority upon which these propositions can be supported. It is conceded by the Judges who decided this case, and those who in Cassels v. Lamb agreed with them in opinion, that there is no express authority for holding that a superior insisting for a decree of irritancy must take back the lands which he feued out, subject to all base rights granted by his vassal, to which he was not a consenting party. In affirming that to be the law, it humbly appears to me that their Lordships have ignored the true character of the superior's right as a preferable right affecting the lands, as well as the true nature of his remedy by declarator of irritancy.
The character and extent of the superior's right of preference is thus accurately defined by Mr Bell:—“The superior has, by means of his real right in the lands, a preference over purchasers and creditors in voluntary and judicial sales and in rankings of creditors. It extends over the whole lands feued, though divided in sub-feuing or on sale, each owner or sub-feuar having relief against the others for excessive payment” (Bell's Principles, sec. 697). In my opinion it is settled law, and it has not in this case been controverted, that in the event of a sale of the dominium utile by the creditors of a sub-feuar, the appellant would have been entitled to rank preferably upon the price realised for the full amount of the arrears due to him, leaving the selling creditors to seek their relief against their debtor's immediate superior, or against the other sub-feuars or disponees. That does not necessarily establish the right of the appellant to annul the sub-feu-rights when an irritancy has been incurred by his own vassal, but it does show conclusively that notwithstanding the granting of sub-feus the appellant's cumulo feu-duty continued as before to be a first charge upon the land itself, and not merely a charge upon the mid-superiorities.
In Cassels v. Lamb ( 12 Session Cases, 4th series, p. 748) the Lord Justice-Clerk (Moncreiff) said—“I have only to repeat that the question now considered leaves the superior's ordinary feudal remedies for recovering his feu-duties out of the whole territory of the original grant entirely untouched. No such matter is involved in the present demand, nor indeed could be.” The noble and learned Lord rightly states that no other remedy than tinsel of the feu could be demanded by the appellant in this action; because it has long been matter of express judicial decision that a superior who takes a decree of irritancy thereby passes from all claim for arrears of feu-duty. But it may be useful to consider what means the superior may, according to the law of Scotland, use for recovery of this feu-duty out of the territory of the original grant when it has been in whole or part sub-feued.
According to Lord Stair, “the superiority carrieth a right to the duty of the reddendo really against the ground of the fee, for which he hath action of poinding of the ground against the vassal and all successors to him whereby he may apprise the goods upon the ground, or the ground right and property of the lands, the said duties being liquidate, upon repayment whereof the lands are redeemable as in other apprisings” (Stair's Institutes, book ii, title 4, sec. 8). By obtaining a decree of poinding for the arrears in question the appellant could have swept away all moveables belonging to the respondents which might at any time have been upon their land; and if any part of their sub-feu, whether con sisting of lands or houses, had been let to tenants, then he could by his attachment of their moveables have recovered the full amount of the rents payable by the tenants to the respondents until his arrears were fully paid. In early times a summons of poinding of the ground contained a conclusion “for apprising the ground-right and property of such portion of said lands as is equivalent unto the said resting feu-duties” (Stair's Institutes, book iv., title 23, sec. 10). The competency of using that remedy after the Act 1672, chap. 19, had introduced adjudications in place of apprisings was doubted by Lord Stair (Inst., book iv., title 23, sec. 8), and it has long fallen into disuse; but I see no reason to doubt that a superior instead of apprising may now adjudge the land for payment of arrears of feu-duty, because an adjudication of the land which is affected by it may be led upon every debt which is a debitum fundi. Mr Duff states expressly that “adjudication of the dominium utile is competent for arrears of feu-duties” (Feud. Conveyancing, see. 56, 5); and Mr Bell in his Commentaries (5th ed. vol. i., pp. 715, 716) makes the same statement of the law.
The superior has another, and what has hitherto been considered his most effectual remedy for non-payment of his feu-duties, in the action of irritancy ob non solutum canonem. Mr Erskine (Institutes, book ii., tit. 5, sec. 13) speaks of this irritancy as “the only casualty, or
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In this case the original feu-right granted by the appellant to Stiven and Gibson contains an express declaration “that in case at any time two years’ feu-duty shall be fully resting-owing and unpaid together, then this present feu-right, and all that may follow hereon, shall, in the option of the superior, become void and null.” If that condition had been less severe than the irritancy, which is made an implied condition of feu-rights by the Act of 1597, it would have superseded the statutory condition, as was decided in Lady Barholm v. Dalrymple (27th November 1750, Morison's Dictionary, 7187). But I am of opinion that the irritancy stipulated in the feu-contract of February 1876 is in substance and effect the same as the irritancy provided by 1597, chap. 250. I do not think that the words “and all that may follow thereon” add to the scope and force of the irritancy. On the contrary, they appear to me to leave it to the law to determine how far rights derived from the immediate vassal by singular successors including sub-feuars are involved in the extinction of his feu-right, and I am accordingly of opinion that the present case must be dealt with and decided as if the appellant was seeking to have an irritancy declared under the provisions of the Act of 1597.
The preamble of the Act, which sets forth the damage which His Majesty and the lieges of the realm sustained through “evill and untimous payment of the feu dewties of their lands,” plainly shows that it was the purpose of the Legislature to secure to superiors a stringent remedy for non-payment of these duties. Then it is enacted that the defaulting vassal is to amit and tyne his feu “conform to the civill and canon law.” The remedy given to the overlord against the “conductor” or “emphyteuta” by the civil law in the event of his failing for three years, and by the canon law in the event of his failing for two years, to pay his annual tribute, was a right of re-entry upon the lands. In these events the civil law (Cod. lib. iv., tit. 66, sec. 2) authorised the overlord “eum a prædiis emphyteutieariis repellere,” and by the canon law ecclesiastical houses were empowered (Nov. 120, cap. 8) “et antiquam statum locatæ sive emphy teuticæ rei exigere, et ejicere de emphyteusi, sive de locatione, non valentem de emponematis actionem aliquam contra venerabiles domos movere.” And it may not be out of place to observe here that by the civil as well as by the canon law the “conductor” or “emphyteuta” could always protect himself against forfeiture of his right ob non solutum canonem, and maintain his possession under it by making prompt pay ment of all arrears due by him.
In my opinion, the remedy which a superior has by virtue of an irritancy implied in terms of 1579 c. 250, or a conventional irritancy of the same import, is a right to annul the charter and infeftment of his feuar, and all that has followed thereon, to the effect of resuming the full beneficial possession of the lands feued, unless the arrears of his feu-duty are at once paid to him, either by the feuar himself or someone deriving such right from the feuar as gives him a legitimate interest to purge. I may refer to Montgomery Bell's Lectures on Conveyancing (vol. ii, page 585) as illustrating the opinion entertained by those who were conversant with the practice followed in these matters. He says, “The object of the statute is to give him ( i.e., the superior) back the lands in case the vassal shall fail to pay the feu-duty, that is, to fulfil the conditions on which he holds them.” The appellant would only have been using the remedy competent to an ordinary creditor in a debitum fundi if he had proceeded to adjudge the whole five acres upon which his feu-duty is preferably charged for the arrears due to him. In that case he would, after obtaining and recording his decree of adjudication, have entered into possession of the subjects, and would have applied the balance, if any, of the rents and profits remaining after payment of preferable yearly burdens, including his own feu-duty of £480, in reduction of his debt of £2088. At the end of ten years, if his debt were not then satisfied, he could have converted his recorded decrees of adjudication into an absolute and irredeemable title of property, by taking a decree of declarator of expiry of the legal. Until that decree was pronounced, his right would remain subject to redemption. Now, it humbly appears to me that the legal effect of the statutory or any similar irritancy is simply to give the superior, who is a preferable creditor for a debitum fundi, an absolute right to the lands upon which it is secured, if the debt be not paid before decree of tinsel, instead of leaving him to follow the remedy which any creditor for a preferable debitum fundi though not a superior might have obtained by means of an apprising or adjudication. As Lord Balgray said, in the Magistrates of Edinburgh v. Horsburgh ( 12 Shaw, page 597), an ac tion of declarator of tinsel of the feu ob non solutum canonem is “just an irredeemable adjudication of the feu in favour of the superior.”
I can discover no satisfactory principle for holding that any of the superior's remedies for the recovery of his cumulo feu-duty out of the entirety of the original feu are impaired by the fact of sub-feus having been created, to which he was not a consenting party, and which he has not confirmed. The superior can poind the ground, he can adjudge, he has a first claim on
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It is said, however, that there is not a single example in the books of a demand being made by a superior for the irritancy of a sub-feu-right because of the failure in payment of his immediate vassal. The fact that there has been no judicial decision or even controversy upon such a point appears to me to indicate that the law has all along been understood to be settled one way or another; but I do not agree with the observation of the Lord Justice-Clerk that “we may assume that the absence of precedent implies the absence of right in such a matter” (see this case, 10 Session Cases, 4th series, p. 622). My reasons for rejecting that inference are mainly these,— that the prime superior's feu-duty is a real debt preferable to the right of the sub-feuar; and that there is no authority whatever to be found for the proposition that the superior cannot reach the land in the possession of a sub-feuar by means of a declarator of irritancy, although he can do so by poinding or adjudication; whilst on the other hand there are expressions of judicial opinion to the effect that the superior's remedies for recovery of a cumulo duty cannot be affected by his vassal dividing the feu or sub-feuing portions of it; and lastly, that the power of the prime superior to irritate their rights because of the default of his vassal and their author appears to me to have been conceded without dispute by sub-feuars.
In Wemyss v. Thompson, January 29, 1836, 14 S. p. 233) a superior feued out a block of building ground, prohibiting subinfeudation, and stipulating that his vassal's disponees should hold of himself, but without coming under an obligation to allocate the feu-duty. The vassal built houses, and conveyed them to different proprietors, with a declaration that each should hold of his superior for a yearly sum, being a proportion of his original feu-duty. Upon these proprietors taking out charters the superior inserted in each an obligation for payment of the whole feu-duty. To this the disponees objected, but the Court held that the superior had the right to do so, but that they were entitled to have a clause inserted in their feu-charters binding the superior to grant an assignation at their expense to the effect of enabling them to recover from their co-feuars whatever sum might be exacted from them beyond their own just proportion of his cumulo feu-duty. Lord Glenlee said—“The possessions in question are portions of an entire subject not separated by any act of the superior, and I can see no solid difference between buildings such as this and lands. The Crown has the right to claim against anyone who has part of the tenement, who is entitled to recover from his co-vassals, and a subject-superior must have the same right.”
Again, in Gilmour v. Balfour, June, 22, 1839, 1 D. 403, a vassal subfeued various portions of his feu, and thereafter granted two separate heritable securities covering the whole feu, one of which included all the sub-feus. The only question before the Court related to the proportions in which the heritable creditors who had entered into possession ought to pay the cumulo feu-duty prestable to the superior. In dealing with that question Lord Jeffrey said—“The right of the superior is not here in question, but is admitted to be catholic, universal, and over ruling against all the present parties. He takes no cognisance of any division which may have been made of the subject for which he has stipulated a cumulo feu-duty, and never can be affected by any such division. He can come for the whole upon the holder of the smallest portion.” The subsequent case of Beveridge v. Moffat (June 9, 1842, 4 D. 1381) appears to me to have a very important bearing upon the point which your Lordships have to decide. There the vassal, who held for a reddendo of £120, sub-feued the whole property to different individuals for feu-duties amounting in the aggregate to the original reddendo, and thereafter became bankrupt, being at the time in arrear to his superior to the extent of six years' feu-duties. With the view of saving their own and the other sub-feus from threatened forfeiture, two of the sub-feuars paid up these arrears to the prime superior, and also purchased the mid superiority from the trustee in the vassal's sequestration, and the action was brought by them against Beveridge, who had acquired one of the sub-feus, for the purpose of compelling him to contribute his proportion along with the other sub-feuars. The case was ultimately decided on the ground that Beveridge had acquiesced in and adopted the steps taken by the sub-feuars for the common behoof; but it must be observed that whilst Beveridge denied acquiescence and disputed his personal responsibility, he did not dispute that his sub-feu might have been evicted by the prime superior or his assignees. The Lord Ordinary (Cunninghame) in his note says—“When the prime superior's claim against the sub-feuars and their properties emerged in 1829 on the bankruptcy of Grant (the mid-superior) it was clearly their interest to save their properties from forfeiture. The prime superior could undoubtedly have instituted an action for irritancy ob non solutum canonem against all the sub-feuars without regard to their settlement with the mid-superior, and Moffat and Grant (sub-feuars), as assignees of Gavin (the prime superior), could have taken a similar step. But the defender superseded such a process by specially agreeing to pay his proportion of the arrears.” Lord Medwyn also speaks of the steps taken by the sub-feuars to satisfy the prime superior's claim for arrears as “agreed upon to save the forfeiture of their feu-rights.” None of
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The principle which runs through these authorities is, that neither the security of the superior for his cumulo feu-duty nor his remedies for its recovery can be impaired by the act of his vassal. That principle can of course have no application in cases where the superior himself has either been a consenting party to subinfeudations by his vassal or has subsequently confirmed the base rights of the sub-feuars. He cannot repudiate his own act although he is not affected by the mere act of his vassal. According to Erskine (Inst. book ii. tit. 7, sec. 8) the confirmation of a base right by the prime superior effectually secures the sub-vassal against all casualties “which entirely exhaust the property,” although it cannot be explained into a renunciation of those casualties which infer only a temporary right to the rents. The appellant's counsel did not argue, and I do not think it could be reasonably maintained, that a superior who has been a party to or has confirmed a charter of sub-feu granted by his vassal is not thereby barred personali exceptione from annulling the sub-feuar's right by declarator of tinsel in respect of his immediate vassal's failure to pay his reddendo for two years together.
The majority of the learned Judges who decided this case in the Inner House seem to have been of opinion that the appellant must be held to have consented to the sub-feu-rights now vested in the respondents. Although a plea to that effect is stated for the respondents in their defences and also in their cases, it was not very seriously insisted in by their counsel, and I do not think any of your Lordships were of opinion that it was in the circumstances of this case maintainable. All that the appellant did was to stipulate in his original charter to Stiven and Gibson that certain conditions therein expressed should constitute real burdens, not only upon their right, but upon the rights of their assignees, and should for that purpose be inserted or validly referred to in all transmissions or investitures of the piece of ground hereby disponed. The respondent's feu-rights, to which the appellant was not in any sense a party, derive their validity, not from any consent of his, but from the law, and the Act of 1874 (37 and 38 Vict. c. 94, sec. 4), which confers upon the respondents certain privileges as to the completion of their title, expressly reserves to all superiors the rights and remedies previously competent to them for recovering their feu-duties and for irritating the feu ob non solutum canonem.
The opinions of the learned Judges who in this case and in Cassels v. Lamb favour the contention of the respondents are to a great extent rested upon the supposed analogy of irritancy ob non solutum canonem to forfeiture of a feu for treason, and to the superior's claim for a year's rent by way of composition for the entry of a singular successor. The authorities in regard to forfeiture for treason, which is not purgeable, when carefully examined do not appear to me to yield any inference favourable to the respondents, and in my opinion the principle upon which a reddendo fairly representing the value of a sub-feu at the time when it was given off was held in Cockburn Ross v. Heriot's Hospital (6th June 1815, F.C., aff. 2 Bligh 709) to be the rent at which the land has been set for the purpose of estimating the year's maill payable to the superior, in terms of 1469, chapter 12, has no bearing whatever upon the question now before the House. But it is quite unnecessary to explain in detail the considerations which have led me to that conclusion, because these are fully expressed in the opinion delivered by Lord Rutherfurd Clark in this case and in Cassels v. Lamb, and by Lords Kinnear and M'Laren in Cassels v. Lamb.
I desire to say, however, that I have not been able to appreciate certain difficulties, said to arise from feudal principle, which seem to have been strongly felt by Lords Rutherfurd Clark and Kinnear. Had the appellant been barred personali exceptione from resorting to any remedy which would have the effect of exhausting the property of the respondents, he would have been bound as regards their sub-feus to limit the conclusions of his action to his vassals' mid-superiorities. The effect of that would have been that the mid-superiorities being irritated, or, in other words, adjudged irredeemably to the appellant, he could either have held them as separate estates or consolidated them with his own superiority, and in either case he could only have demanded from the respondents the feu-duties stipulated in their charters. Such a result does not appear to me to do violence to any feudal principle, and I apprehend that precisely the same result would have followed if it could have been shown that the respondents' sub-feu-rights are by law as effectually protected against his right of irritancy as if he had expressly consented to or confirmed them.
I am accordingly of opinion that the interlocutors appealed from ought to be reversed and the case remitted to the Court of Session, with a declaration that the appellant is entitled to have decree in terms of the conclusions of his summons against the respondents. In my opinion the respondents ought to pay to the appellant the expenses incurred by him in the Court below, since the 10th March 1882, as well as his costs of this appeal, and I move accordingly.
On principle, and in the absence of positive law or authority to the contrary, it would have appeared to me to follow, from the very nature of a subordinate right like the feu in question, that it must be subject to the conditions on which the principal feu out of which it was derived was created. There is no positive law and no authority to the contrary.
Nor does it appear to me that any real hardship or injustice to the sub-feuar results from this
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The House reversed the interlocutor of the Second Division, and remitted the cause to the Court of Session, with a declaration that the appellant (pursuer) should have decree in terms of the conclusions of the summons.
Counsel for Pursuer (Appellant)— Asher, Q.C.— H. Johnston— C. Neish. Agents— Heish & Howell—Henderson & Clark, W. S.
Counsel for Defender (Respondent)— Davey, Q.C.— Strachan. Agents— Faithfull & Owen—Davidson & Syme, W.S.
