Scottish Court of Session Decisions

This was an action under the Conveyancing Act of 1874 by the Duke of Montrose, superior of certain lands described in the summons, against the trustees of the late Moses Provan, concluding for declarator that in consequence of the death of James Provan, the vassal last vest and seized in certain of these lands as described in the summons, a casualty, being one year's rent of the lands, became due to the pursuer, and for payment thereof, and that in consequence of the death of Anne Caldwell Holmes, the vassal last vest and seized in certain other lands described in the second place in the summons, a casualty of one year's rent of these lands became due to the pursuer, and for payment thereof.

Both pieces of land formed parts of the twenty shilling lands of Auchengillan, and were originally disponed in a feu-contract dated 25th August 1631 between James, Earl of Montrose, with consent of his curators, and John Wair, Archibald Buchanan, and George M'Indoe. They were there described as part of the twenty-shilling land of Auchingilzean, lying in the “Barronie of Mugdoek parrochine of Strathblane and sherreffdome of Stirling.” They weredisponed to the said three persons above named, who were described as “possessors and kyndlie tenants” of the said twenty shilling lands of Auchengillan. The contract narrated that the Earl, in consideration of “certain

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great sowmes of money,” “set and in feu-ferme and heretadge perpetuallie Dimitts as be thir pnts setts & in feu-ferme & heretadge perpetuallie Dimitts to the said John Wair & his aires whatsomever (or assignayes wha not exceed Three Chalders victuall in yeirlie standant rent) heretablie perpetuallie & Irre dimablie All and Haill that Ten shilling land of the said Town & Lands of Auchingilzean sentlie possest be the said John, To the said Archibald Buchanan his aires whatsomever (or assig nayes wha shall not exceed the said quantitie of Three chalders Victuall in yeirlie standant rent) All and Haill that Fyve shilling land of the said toun and Lands of Auchingilzean presentlie possest be him To the said George M ‘Indoe & his heirs whatsomever (or assignayes wha shall not exceed the foresaid quantitieof Three Chalders victuall in yeirlie standing rent) All and Haill that Fyve shilling land of the said town & lands of Auchingilzean presentlie possest be him. The lands were “to be holden be them and their foresaids ilk ane for their ain pairts as is above divyded off the said James Earl of Montrose his heirs-male and successors succeeding in the lordship and Barronie of Mugdock in feu-ferme and heritage forever.” The feuars were bound to ride with the superior in frays, and perform other feudal services.

The contract then proceeded—“Attour the said Noble Earle with consent foresaid Binds & obeiss him his aires & successors to accept or receive the air or aires of the saids John Wair Archibald Buchanan and George M'indow rexve [ i.e., respective] and successive In & to yr particular pairts of the forsd twentie shilling Land with the pertinents as is above divyded And yt be precepts of Clare Constat in dew forme for payment of Fyve merks money for yr entrie for evrie kyndlie air to ilke fyve shilling Land above mentioned Aud also shall receive In & to the foresaids Lands any tennent that shall happin to buy the same frae the saids persons or ony of them or yr forsds (the Buyers yrof not exceeding the Rank above wryttine) And yt be Resignaone Confirmaone or Charter of Alienane contening precepts of seasine To be Holdine as the Resigner or annalzier held of befor For payment of Tenn pounds money for y ^r entrie to ilk Fyve shilling Land forsaid And accepting ane new eonqueiser yrintill.”

The defenders were infeft in part of the lands originally feued out in this contract. They claimed to fall within the category” who shall not exceed 3 chalders victuall in yeirlie standant rent,” and so to be liable only to pay a casualty such as was to be paid by such successors a taxed composition of £10 Scots for each portion of the five shilling land], and not liable as singular successors in a casualty of one year's rent. They stated that except the subjects to which the summons related they had only a heritable property in Glasgow, the agricultural value of which was much less than three chalders victual, and they tendered the taxed composition of £10 Scots for each of the five shilling lands described in the summons, which would be exigible on the footing that their contention was right.

The Lord Ordinary ( Kinnear) pronounced this interlocutor—“Finds (1) that in consequence of the death of James Provan, designed in the summons, a casualty became due and payable to the pursuer as superior of the lands first described in the summons, amounting to £10 Scots for each of the 5s. lands described in the summons, being in all the sum of £1, 13s. Id. sterling; and (2) that in consequence of the death of Miss Anne Caldwell Holmes, designed in the summons, a casualty became due and payable to the pursuer as superior of the lands described therein, amounting to £8, 14s. 8d. sterling and decerns against the defenders for payment of these respective sums accordingly: Finds the defenders entitled to expenses, &c.

“ Opinion.—This is an action for payment of casualties under the Conveyancing Act of 1874. It is admitted that a casualty is due in respect of each of the parcels of land described in the conclusions of the summons in consequence of the death of the last-entered vassal, and the only question is, whether the composition payable by the defenders has been taxed, or whether they are liable for a year's rent of the lands?

“The question depends upon the construction of a feu-contract dated in 1631 between the Earl of Montrose and his curators, on the one part, and three persons who are described as possessors and kindly tenants of the twenty shilling land of Auchingillian, each for his own part thereof, on the other. The defenders, who are proprietors infeft in certain portions of this twenty shilling land, have not connected themselves by any consecutive progress of titles with the feu-contract, but it is admitted to be the original grant from which their right has been derived, and it follows that it fixes the terms upon which they are entitled to enter with the superior.

“By this contract it is set forth that in consideration of certain great sums of money paid to the Earl by the three kindly tenants above mentioned the Earl sets, and in feu-farm and heritage demits, to each of them, ‘and his aires whatsomever (or assignayes wha shall not exceed three chalders victuall in yeirlie standant rent),’ a certain portion of the lands of Auchingillian, to be holden ‘be them and their foresaids, ilk ane for yr owne pairts as is above divyded, off the said James, Earl of Montrose, his heirs-male, and successors succeiding in the lordship and barronie of Mugdock, in feu-ferme and heretadge forever.’

“The feu-right, therefore, is in favour not only of the original vassals and their heirs, but also in favour of their assignees, provided the rental of the assignee does not exceed the specified amount. And there can be no question that the word ‘assignee,’ contrary to the ordinary usage in charters of that date, is intended to include disponees of the real right after the infeftment of the original vassal, because the superior after binding himself to receive the vassals and their heirs respectively and successively, goes on to bind himself to receive also ‘in and to the foresaids lands ony tennent that shall happin to buy the same frae the saids persons, or ony of them, or yr forsds (the buyers yrof not exceeding the rank above wryttine), and yt be resignane, confirmaone, or charter of alienaoe, contening precepts of seasine, to be holden as the resigner or annalzier held of befor, for payment of tenn pounds money for yr entrie to ilk fyve shilling land forsaid, and accepting ane new conqueiser yrintill.’

“There can be no doubt as to the meaning of

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this obligation. The feu-right was created at a time when a vassal could not alienate voluntarily without the consent of the superior, and when no heir or singular successor could complete a title without the superior's interposition. The superior consents by anticipation to alienation on certain conditions, and undertakes to give an entry to the singular successors either of his immediate vassals or their heirs, provided they satisfy these conditions, on payment of a taxed composition, just as he is bound to enter heirs on payment of relief-duty. But since his vassals are bound to ride with him in time of war, and ‘at frayes and followings,’ he has an interest to secure that his lands shall not come into the hands of persons having larger holdings under other lords, and accordingly while he obliges himself to receive purchasers not having more than three chalders of victual, he undertakes no obligation to recognise any voluntary alienation in favour of persons who do not answer that description, and he expressly reserves his right ‘to take the benefit of the saids lands,’ or, in other words, to demand the ordinary composition ‘frae ony intrant wha shall obtein the same be compryseing, conforme to the Act of Parliat and common practiq of this realme.’

“The question, therefore, comes to be, whether the defenders belong to the limited class of singular successors who are enfranchised by the feu-contract so as to entitle them to an entry on payment of the taxed composition, or whether they are in the position of ordinary purchasers who can come in only under the statutes enabling singular successors to compel an entry, so that prior to the Act of 1874 they could not have obtained a charter except on payment of a year's rent, and are now liable under that Act for a similar payment by reason of their implied entry.

“I am of opinion that in so far as regards the parcel just described in the conclusions of the summons, they are liable only for the taxed composition, because I think they answer the description of buyers who ‘do not exceed three chalders victual in yearly rent.’ Victual rent is a term applicable only to the rent of agricultural subjects, and the defenders, although they have heritable property in Glasgow, have no property yielding an agricultural rental.

“It is true that the purpose of the stipulation has entirely failed, and that the superior has no interest in excluding vassals holding lands elsewhere, even if he had power to exclude them. But the obligation to accept a taxed composition from purchasers having a limited rental still remains an integral part of the contract constituting the relation of superior and vassal. It is an obligation which was plainly intended to follow the transmissions of the feu in perpetuity, and I see no reason to doubt that the defenders are entitled to enforce it.

“As to the second parcel, the defenders concede that they must pay the sum claimed by the superior, because by their infeftment in the first parcel they became proprietors of land exceeding the stipulated value.”

The pursuer reclaimed, and argued—The defenders were liable in payment of a composition of a year's rent, and not merely of the taxed entry as given in the feu-contract. The words used in the deed showed this. In the dispositive clause the words were “to the said John M'Indoe and his airs whatsomever or assignees quha shall not exceed the foresaid quantity of three chalders victual in yearly standing rent,” and the words “foresaids” were used in reference to these all the way through the deed until the taxing clause. There the words were different. The Earl bound himself to receive the “air or airs” of the said John M'Indoe for payment of five merks for the entry of every kindly heir, and also any tenant that should happen to buy the same from him or “his forsds.,” for payment of ten pounds for his entry to the lands. And the next clause reverted to “airs and successors forsds.” That showed that the Earl was willing to give a benefit to the kindly tenant, to his heir and to the first purchaser of the lands. But after the first purchaser any other singular successor must pay the full composition.—Bankton's Inst. i. 629; Ross Lectures, ii. 478; Erskine Inst. ii. 6, 37, 38; Stair Inst. ii. 9, 15; Brisbane v. Semple, 6 June 1794, M. 15, 061; Magistrates of Inverkeilhing v. Ross, October 30, 1874, 2. R. 48. The words “assignees” usually applied to assignees before infeftment. Even assuming that the taxed entry was to apply to any purchaser beyond the first singular successor, the defenders could not claim the benefit of the clause as the lands could be assigned only to men of “three chalders victual,” and they did not come under that category. They admitted that they were infeft in the first piece of land mentioned in the summons, and therefore they were in possession of land of more than three chalders victual— The Laird of Craigie Wallace, March 21, 1623, M. 6432 and 7191. The purpose of the deed was not merely to get feudal services from the tenants, but also tohaveacertain kindof tenant, and if a person who sought to become tenant was the owner of land of more than three chalders victual he could not become tenant. It did not matter that the tenant had no heritable property.

The defenders argued—The words in the dispositive clause applied to all persons who came to have right to the lands, and the word “foresaids” used in the deed applied to them all through the deed, so that any tenant entering these lands was entitled to do so upon a taxed entry as in the feu-contract. What the deed purposed to do was to get a large number of tenants upon the property who could act as followers to the Earl either in the King's wars or in his private quarrels, and that was the reason of the insertion of the clause regarding three chalders victual. The defenders were proprietors of some small heritable property in Glasgow only, and although the value of that might be more than three chalders victual, the agricultural value was much less.

At advising the opinion of the Court (Lords Young, Craighill, and Rutherfurd Clark) was delivered by