Scottish Court of Session Decisions

The Provost, Magistrates, and Town Council of the Burgh of Dundee, as patrons and trustees of the mortification of charity established by the will of the late Robert Johnston of London, dated 30th September 1639, are proprietors of the piece of land called Monorgan's Croft, situated in the burgh of Dundee, which they purchased with a portion of a legacy of £1000 left by the said Robert Johnston. By the extension of the town this land became a feuing subject. In the course of feuing the subjects in the year 1863 they resolved to expose to sale a portion of the ground in lots. On 30th December 1863 they accordingly exposed the same for sale in terms of articles of roup. The ground was divided into five separate lots, and it was provided that the same should be exposed to public auction for payment of the respective sums of yearly feu-duty there specified, and, inter alia, lot 2 at the upset yearly feu-duty of £38, lot 3 at £60, and lot 4 at £54; and the articles of roup also stipulated as follows, viz.:—“But besides the said yearly feu-duty, the purchaser of each lot shall be bound to pay a duplication of said feu-duty at the expiry of every twenty-fifth year, commencing the first payment of said duplication at the expiry of twenty-five years from the date of the purchaser's entry, and each offer after the upset yearly feu-duty is offered for said respective lots shall be an increase of that feu-duty, not for one year only, but for every year.” The articles of roup, which also contained obligations and restrictions on the purchasers as to buildings, provided that a feu-contract containing all usual and necessary clauses, and containing all the clauses and stipulations as to the buildings, should be entered into by the purchaser, and that the subjects were to be held under the exposers as superiors for payment and performance of the feu-duties and other prestations mentioned in the articles. In the advertisements of the proposed sale there was inserted, after a specification of the respective sums of upset yearly feu-duty at which the various lots were to be exposed, the following clause—“Besides the respective yearly feu-duties above mentioned, the purchaser of each lot will be taken bound to pay a duplication thereof every twenty-fifth year, commencing said duplication at the termination of the first twenty-fifth year after Whitsunday 1864.”

Peter Rattray, slater, Dundee, became purchaser of lots 2 and 3, lot 2 at the yearly feu-duty of £43, 5s., and lot 3 at the yearly feu-duty of £85, 5s., and George Dunn Whyte became purchaser of lot 4 at the annual feu-duty of £64, 5s. Accordingly, and in terms of the articles of roup, feu-contracts were entered into between these purchasers and the patrons as superiors. In these two feu-contracts the essential clauses affecting the present question were in like terms. In the contract with Rattray the superiors conveyed the lots “to and in favour of the said Peter Rattray, and to his heirs and assignees, heritably and irredeemably, but with and under the following provisions and declarations, namely, that the said Peter Rattray and his foresaids”— [Here followed a restriction as to the height of buildings which might be erected; and then this clause]—“That besides making payment of the said yearly feu-duty at the terms after mentioned, the said Peter Rattray or his foresaids shall be bound to pay a duplication of the said feu-duty at the expiry of every twenty-fifth year, commencing the first payment of said duplication at the expiry of twenty-five years from the 1st day of April 1864, being the date of the said Peter Rattray's entry to the said subjects.” Then followed various provisions to ensure the building and maintaining of houses on the land, and restrictions against certain uses of it, and a clause by which the patrons bound themselves “to infeft and seise the said Peter Rattray and his foresaids at their own expense” in the subjects, “with and under the conditions and obligations foresaid, to be holden immediately of and under us and our successors in office in feu-farm, fee, and heritage for ever, for payment and performance of the feu-duties, duplication thereof, and other prestations before and aftermentioned.” … “For which causes, and on the other part, the said Peter Rattray binds and obliges himself and his foresaids to make payment to the said parties of the first part, and their successors in office, and assignees or others in their name having right to receive the same, of the foresaid sum of £43, 5s. in name of feu-duty for said lot second, and the said sum of £70, 12s. 8 1 2d. in name of feu-duty for said lot third, and that at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first payment thereof at Whitsunday 1864 for the period from the date of entry to that term, the next payment at Martinmas thereafter for the half year preceding, and so on at the said two terms of Whitsunday and Martinmas in all time coming, with a fifth part more of each term's payment of liquidate penalty in case of failure, and the due and legal interest of the said feu-duty from and after the respective terms of payment thereof, and thereafter during the nonpayment.” The feu-contract with Peter Rattray was executed by both parties on 5th April 1866, and the contract with the said George Dunn Whyte in the same terms was dated 8th and 25th September 1865.

In May 1874 Rattray sold his property to Peter Duncan, who disponed it in 1876 to J. F. Calder and James Paterson as trustees for Calder & Paterson. Rattray died in September 1874, at which time the gross rental of the subjects bought by him was £500. At the date of Rattray's death

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Duncan stood infeft in the subjects, and at the date of this case Calder, the surviving partner of Calder & Paterson, was infeft in them.

Whyte died in 1877. and at the date of this case his son James F. Whtye was vested in them. His subjects had been sub-feued, and the annual feu-duties received by Whyte were £104, which was claimed by the patrons as the casualty for an entry due to them as superiors.

This Special Case was stated by the patrons the Provost and Magistrates in the character of superiors, first parties, and by Duncan, Calder & Paterson, and Calder, and also James F. Whyte, second parties, to determine whether the patrons were entitled to casualties in addition to the duplication of feu-duties every fifth year. The first parties maintained—(1) That there being no express or implied discharge or taxing of the legal casualties of superiority payable on the entry of heirs and singular successors in the feu-contracts referred to, the legal casualties and rules of law applicable thereto applied, and the same were payable to the first parties; (2) that having regard to the articles of roup and subsequent feu-contract, the duplication of feu at the expiry of 25 years could not be held to be in lieu of or operate as a discharge of the legal casualties of superiority of entry payable to the superiors. The second parties maintained that the stipulations contained in the articles of roup and feu-contracts for payment of a duplication of said feu-duty every twenty-fifth year, were, according to the true meaning and import of these deeds, in respect and in lieu and stead of the casualties payable on the entry of heirs and singular successors; that the first parties granted warrandice of the feu-contracts in respect of the payments expressly stipulated; and that they had no legal claim for payment of any other casualties of superiority than the duplication of feu-duty.

The question stated for the determination of the Court was as follows—“Are the first parties entitled to payment of the casualties of superiority chargeable against heirs and singular successors in feus granted prior to the date of the Conveyancing (Scotland) Act 1874, in addition to the duplication of feu-duty stipulated by the said feu-contracts to be paid every twenty-fifth year?”

Argued for first parties—If the legal casualties of superiority payable on the entry of heirs and singular successors were to be discharged or taxed, it was essential that this should have been effected in the reddendo clause. Now, the reddendo clause here dealt with the duplication of the feu-duty at the expiry of every 25th year, making no mention of such a discharge or taxation as being intended in respect of the stipulated duplication. The result, therefore, must be that the superiority rights remained ex lege, and the question of law fell to be answered affirmatively— Duff's Feudal Conveyancing, 56; Aitchison v. Hopekirk, February 14, 1775, M. 15,060; Earl of Zetland v. Carron Co., June 30, 1841, 3 D. 1124.

The second parties replied—It was the plain meaning of the deeds that the duplication of feu-duty at the expiry of every 25th year should be substituted for the legal casualties of superiority payable on the entry of heirs and singular successors. It was unknown in the practice of the law of Scotland to make a provision for the periodical increase of feu-duty— Hamilton v. Dunn, July 16, 1853, 15 D. 925; Magistrates of Inver-keithing v. Ross, October 30, 1874, 2 R. 48; Morrison's Trs. v. Webster, &c., May 16, 1878, 5 R. 800.