Scottish Court of Session Decisions

Bertram Murray, pursuer, brought an action of maills and duties against Mrs Ada Davis or Bruce, defender, and others, her tenants, to obtain payment of £133, 6s. 8d., the alleged amount of a grassum stipulated for in a contract of ground annual.

The contract of ground annual, which was dated 21st February and recorded 7th March 1877, after disponing a plot or area of land to the defender's authors, provided as follows—“And which plot or area of ground thereby disponed was so disponed always with and under the burdens, conditions, restrictions, declarations, and others therein specified or referred to; and particularly with and under the real lien and burden of the payment of a yearly ground rent or ground annual of £66, 13s. 4d. payable out of the subjects disponed under the said first-mentioned contract of ground annual, which ground rent or ground annual was declared to be a debitum fundi to be paid to and uplifted and taken by the [pursuer's authors] furth of and from the said plot or area of ground thereby disponed and houses and buildings erected or to be erected thereon on any part or portion thereof, and from the readiest rents, maills, and duties of the same, at two terms of the year, Whitsunday and Martinmas, by equal portions, beginning the first term's payment of the said

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ground annual at the term of Martinmas 1877, with one-fifth part further of each term's payment in case of and for each failure in the punctual payment thereof in name of liquidate penalty, the said termly payments themselves bearing interest at the rate of five per centum per annum for each term's payment from and after the term at which they respectively become due till paid; And also under the real lien and burden of the payment of a duplication of the said ground rent or ground annual in respect of the said subjects in name of grassum therefor at the expiry of every nineteenth year from and after the term of Martinmas 1877 over and above the ground rent or ground annual payable for the said subjects thereby disponed, and that for the year then current but for that year only, beginning the first payment of the said grassum at the term of Martinmas 1896, and so forth continuing in the regular payment of the said grassum at the expiry of every nineteenth year from and after the said term of Martinmas 1896, with interest and penalty as is provided with regard to the said ground rent or ground annual.”

The pursuer pleaded—“The pursuer being entitled, in virtue of said first-mentioned contract of ground annual, to enter into possession of said subjects, and uplift the rents thereof, decree should be pronounced in terms of the conclusions of the summons.”

The defender pleaded—“2. On a sound construction of the contract of ground annual the ‘duplication’ of the ground annual therein stipulated for being a sum of £66, 13s. 4d., and these defenders being ready and willing to pay the said sum of £66, 13s. 4d., they are entitled to be assoilzied from the conclusions of the summons.”

The facts of the case appear from the opinion of the Lord Ordinary ( Hunter), who on 6th December 1916 sustained the second plea-in-law for the defender, and found that the amount payable in name of grassum was £66, 13s. 4d., and, on 18th January 1917, in respect that the defender had paid the said sum with interest assoilzied the defender.

Opinion.—“In this action of maills and duties the question which I have to determine is the amount of a grassum payable by the principal defender to the pursuer at Martinmas 1915.

By contract of ground annual dated 21st February 1877 the pursuer's authors sold and disponed to the defender's author a plot of ground in the parish of Govan under the real burden of payment of a yearly ground rent or ground annual of £66, 13s. 4d., and also ‘… [ His Lordship then quoted the clause.] …’ The ground itself was disponed to the granter of the contract of ground annual in security of the ground rent and the grassum.

At Martinmas 1915 a grassum became payable by the defender to the pursuer, who claimed payment of £133, 6s. 8d., being twice the amount of the ground annual. The defender was willing to pay £66, 13s. 4d., but resisted payment of the larger amount.

From the phraseology of the clause there is no doubt that the grassum is payable in addition to the feu-duty payable. The question is whether a duplication of the ground annual means once or twice the amount of the ground annual giving the owner twice or three times the amount of the ground rent for the year when the grassum is payable. The pursuer maintains that the question is concluded in his favour by the cases of Earl of Zetland v. Carron Company, 1841, 3 D. 1124, and Governors of George Heriot's Trust v. Lawrie's Trustees, 1912 S.C. 875, 49 S.L.R. 561 (followed by Lord Cullen in the Commercial Union Assurance Company, Limited v. Waddell, 1917, ante, p. 497).

In the former of these cases the reddendo clause in a feu charter was for yearly payment to the superior of a certain sum of feu-duty, ‘and paying a duplicand of the said feu-duty at the end of every twenty-five years, upon payment of which duplicand, over and above the feu-duty of the year in which it fell due,’ the superior should be obliged to enter the vassal. It was held that the superior was entitled at the term in question to payment of a sum equivalent to three years' feu-duties.

In dealing with the meaning of the duplicand the Lord Ordinary (Lord Jeffrey) said—‘The duplicand, or double, that is to be actually paid, is not one but two years' duties.’ In the Inner House the Lord Justice-Clerk said—‘I am unable to find any ground for differing from the Lord Ordinary or for saying that “duplicand” is anything but double of the feu-duty.’

In Governors of George Heriot's Trust v. Lawrie's Trustees, where the obligation in a feu contract was to pay ‘a double of the said respective feu-duties before mentioned in name of composition,’ the First Division of the Court held that the amount so payable for composition was in each case a sum equivalent to double of the annual feu-duty over and above the half-year's feu-duty due at the term when the composition fell to be paid.

The Lord President said—‘This is a pure question of construction of what the parties meant, and I cannot say that personally I have had much difficulty in coming to a conclusion.’

Certain cases were quoted to us, and in such a matter cases are useful, but unless the cases deal with words which are exactly similar they are not absolutely authoritative.’

The language which I have to construe arises in a contract of ground annual and not in a feu contract, as in the cases of Earl of Zetland and Governors of George Heriot's Trust. If, however, the words used had been ‘the duplicand’ or ‘a double’ of the ground rent I should not have considered myself justified in taking a different view from what was there taken. I do not, however, think that ‘a duplication of the ground annual’—the words used in the contract—have the same meaning as ‘the duplicand’ or ‘a double,’ the words used in the cases founded upon by the pursuer. A duplication of a thing or of an amount does not appear to me to be two copies or twice the

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amount of the thing or amount duplicated. I do not think that there is any distinction between a duplication and a duplicate. One thing is said to be a duplicate of another if it is similar thereto in all respects, and one amount is a duplicate of another similar amount. It appears to me to be an unnatural use of language to employ the words a duplication of a ground rent as referring to and including twice the amount of the ground annual. In the case of Governors of George Heriot's Trust Lord Johnston, though not dissenting from the judgment of the Court, said—‘I must say that the impression which the words used have made upon me is that “a double of,” in the collocation in which the words occur, naturally means “a replica of”—that is (as the “double” is something to be calculated in money), that these words mean a sum which is the same as, and not twice as much as, the feu-duty.’ I think that what is there said is directly applicable to a stipulation in a contract of ground annual for payment of a grassum amounting to ‘a duplication of the ground rent.’ In my opinion the defender's contention ought to prevail.”

The pursuer reclaimed, and argued—The word “duplication” meant the act of making two duplicates and was used to mean the duplicates so produced taken together, not one or other of them. Similarly a triplication did not mean one of the three similar things produced by that act but the product. In exactly similar circumstances a double of the feu-duty was held to mean two feu-duties— Governors of George Heriot's Trust v. Lawrie's Trustees, 1912 S.C. 875, 49 S.L.R. 561—and a “duplicand” had been similarly interpreted— Finlay v. Adam, 1917, 54 S.L.R. 388—and “duplication” had been regarded as equivalent to a duplicand— Magistrates of Dundee v. Duncan, 1883, 11 R. 145, 21 S.L.R. 107—and the two terms had been regarded as interchangeable— Commercial Union Assurance Company v. Waddell, 1917, ante, p. 497. The pursuer was therefore entitled to twice the annual rent as grassum.

Counsel for the defender were not called on.