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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> His Grace the Duke of Montrose v. Sir W. D. Stewart and Another [1863] UKHL 2_Paterson_1168 (27 March 1863) URL: https://www.bailii.org/uk/cases/UKHL/1863/2_Paterson_1168.html Cite as: [1863] UKHL 2_Paterson_1168 |
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Page: 1168↓
(1863) 2 Paterson 1168
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 11
Subject_Superior and Vassal — Feu
Contract
— Teinds —
Clause
of Relief — Assignation —
In a
feu
![]()
contract
granted in 1705, the granter “binds and obliges him and his
foresaids
to
warrant
the said teinds, parsonage, and vicarage to be
free,
safe and sure” to the grantee “
from
all ministers' stipends,
future
augmentations, annuities, and other burdens imposed, or to be imposed, on said teinds?”
Held (affirming judgment), In an action brought by a singular successor of the vassal against the superior
for
the purpose of enforcing the obligation, that it
was
a
condition
of the
feu
rights inseparable
from
the relation of superior and vassal; and that it
was
transmitted
with
the lands
without
being specially assigned. 1
This action was
brought by Sir
William
Drummond
Stewart,
with
consent
of Mr. Kellie M'
Callum,
for
the purpose of enforcing against the
defender,
the
Duke
of Montrose, an obligation of relief against augmentations of stipend,
contained
in a
feu
contract
granted by the Marquis of Montrose on 1st January 1705. The obligation
was
expressed as
follows:—“And
further,
in regard the said Mr.
David
Graham has payed as great a pryce
for
the saids teinds, parsonage and vicarage, as
for
the stock of the said lands, therefore the said James, Marquess of Montrose, binds and obliges him and his
foresaids
to
warrant
the said teinds, parsonage and vicarage, hereby
disponed
to be
free,
safe, and sure, to the said Mr.
David
Graham and his said son, and his
foresaids,
from
all ministers’ stipends,
future
augmentations, annuities, and other burdens imposed or to be imposed upon the said teinds.”
The defender
did
not
dispute,
that the obligation
was
aptly expressed to
form
a
claim
for
relief against augmentations if the question had arisen
with
the original parties to it, or if it had been properly transmitted to the pursuers; but he maintained, that it had not been so under the titles by
which
they acquired the lands. The titles
were
as
follow:—By
feu
contract,
dated
1st
February
1705, James, Marquis of Montrose,
feued
the lands of Braco to
David
Graham, in liferent, and to James Graham, his son, and a
certain
series of heirs therein mentioned, in
fee;
whom
failing,
to the said
David
Graham, his heirs and assignees
whomsoever.
The
feu
contract
contained
the
clause
of relief above quoted.
In virtue of the feu
contract
David
Graham and James Graham
were
infeft,
for
their respective rights of liferent and
fee,
on 23d May 1705.
James Graham having _________________
1 See previous report
22 contracted
debt,
several of his
creditors,
after the
death
of his
father,
David
Graham, obtained
decree
of adjudication against the lands of Braco, viz. Thomas Andrew
Footnote
_________________
D.
755;
32 Sc. Jur. 308.
S.
C.
4 Macq. Ap. 499:
1 Macph. H. L. 25:
35 Sc. Jur. 420.
Page: 1169↓
The titles were
further
traced
down
to 1853,
when
the lands
were
disentailed
and acquired by Sir
W.
D.
Stewart and the other pursuer M'
CulIum
by purchase.
The Court
of Session held, that the obligation
was
a
condition
of the
feu
rights inseparable
from
the relation of superior and vassal, and transmitted
with
the lands
without
being specially assigned.
The Duke
of Montrose appealed, maintaining in his
printed
case,
that the judgment of the
Court
of Session should be reversed,
for
these reasons:—1. Because the respondents had no title or right to insist
for
implement of the obligation of relief
contained
in the
feu
contract
of 1705. 2. That obligation
was
a personal and
collateral
one
which
did
not run
with
the lands, but required to be transmitted by special assignation. 3. It had not been transmitted to or acquired by the respondents, or either of them. 4. In any view, the appellant
was
not liable beyond the value of the superiority.
The respondents in their
printed
case
supported the judgment on the
following
grounds:—1. The superior and vassal in a
feu
right remain reciprocally bound,
during
the subsistence of the right, to implement to one another the obligations incumbent upon the superior and vassal respectively, in the original
charter
or
feu
contract
constitutive
of the
feu,
in so
far
as these obligations affect the subject of the
feu,
and are of a
continuous
and permanent
character.
2. The superior and vassal in a
charter
by progress, renewing the grant in the original
charter
or
contract,
are understood to adopt, as the
contract
betwixt them, the original
charter
or
contract
constitutive
of the right,
with
all its
conditions
and provisions, in so
far
as not expressly
discharged
or modified in some renewal of the right. 3. The right to enforce, and the liability to
fulfil,
inter se, the rights and obligations
competent
to, or incumbent upon, the superior and vassal in a
feu
right, in terms of the original
contract,
pass and become
competent
to, or incumbent upon, the superior and vassal in any
charter
by progress, by the mere renewal of the right,
without
any special assignation or other transmission of such rights and obligations. 4. The
feu
right,
constituted
by the
contract
of 1705, betwixt James, Marquis of Montrose, and
David
and James Graham, being a grant by the Marquis, as superior, to the Messrs. Graham, as vassals, of
certain
lands,
with
the teinds thereof,
for
the
full
value of the said lands and teinds, the obligation undertaken by the superior “to
warrant
the said teinds, parsonage and vicarage, above
disponed,
to j be
free,
safe, and sure to the said Mr.
David
Graham and his said son, and his
foresaids,
from
all ministers' stipends,
future
augmentations, annuities, and other burdens, imposed or to be imposed upon the said teinds,” is an obligation immediately affecting the subject of the right— of a
continuous
and permanent
character—and
so transmissible, as betwixt superior and vassal, by a renewal of the
feu
right,
without
any special assignation of the said obligation. 5. Assuming such an assignation to be necessary to
confer
a title upon the respondents to enforce the obligation, the
continuous
and unbroken series of assignations to
writs,
and
whole
clauses
thereof,
from
James Graham and intervening vassals to the respondents,
would
be sufficient to
confer
such a title. 6. The
feu
duty
stipulated in the original
feu
contract
and successive renewals of the right, being payable
for
a grant,
inter alia, of the teinds of the lands included in the
contract,
unburdened
with
augmentations, the appellant is not entitled, on the one hand, to exact the
full
feu
duty,
and to repudiate, on the other, the obligation to
free
the teinds of all augmentations of stipend. 7. The appellant, and his immediate predecessor, having paid the augmented stipend effeiring to the lands embraced in the
feu
contract,
and now belonging to the respondent, Mr. M'
Cullum,
from
1800 until 1847, must be held to have adopted and undertaken,
rebus
ipsis et
factis,
the obligation to pay such augmented stipend expressly undertaken by their predecessor, James, Marquis of Montrose, the superior in the original
feu
contract
of 1705.
Rolt Q.C.,
and
Shand,
for
the appellant.—It is not
disputed,
that in this
case
the
deed
of 1705
contained
a proper obligation by the appellant's ancestor to relieve the other party to that
deed
against augmentations, but the obligation has not been transmitted to the respondent. It is not. an obligation
which
runs
with
the lands, being
collateral
to the subject matter of the sale, according to the
definition
of Lord
Cottenham
in
Maitland v. Horne,
1 Bell's Ap. 1;
Breadalbane v. Sinclair,
5 Bell's Ap. 353. Such an obligation, therefore,
does
not pass by a general
clause
of assignation of the
writs—Menzies'
Convey.
616; Ersk. 2, 3, 31. The general
clause
does
not
carry
a tack of teinds—
Grahame v.
Don,
Dec. 1814,
F.C.
Nor
does
it
carry
a right of
warrandice
in
case
of eviction—
Hamilton v. Montgomery,
12 S. 349. In
Maitland v. Horne, it
was
also held, that a special assignation is required to
carry
an obligation by a
disponer
of lands to relieve the
disponee
of all
future
augmentations of stipend:
per Lord
Campbell
in
Breadalbane v. Sinclair,
5 Bell's App. 376. So in
Spottiswoode v. Seymer,
15
D.
458, it
was
held, that
where
the obligation of relief had been granted, and the
disponee
executed a procuratory of resignation in
favour
of his son,
who
was
infeft on a
charter
of resignation, the obligation
was
not transmitted. It is said, that the
case
of
Lennox v. Hamilton,
5
D.
1357, shews the
contrary;
but that
case
proceeded on an erroneous view of the
case
of
Maitland v. Horne, as has been pointed out in later
cases.
If, therefore, a special assignation
was
Page: 1170↓
The Solicitor General (Sir R. Palmer), and
Mure, for
the respondents.—The obligation of relief in this
contract
was
intended by the parties to the
deed
of 1705 to be permanent, and to run
with
the
feu;
and it is a
condition
of the
feu
contract
subsisting in
whosesoever
hands the estate is
found.
The
feu
charter
or
contract
is the proper test of the
conditions,
and each renewal of the investiture implies the
continuance
of the
conditions
in the original
disposition
or
contract—Craig,
2, 12, 8; Ersk. 2, 3, 20. Such is still the law—
Threipland v. Rutherfurd,
10
D.
1063;
Graham v.
Duke
of Hamilton. Therefore, on each renewal of the investiture, the parties adopt the original
contract
unless they specially provide otherwise. The obligation here is available to no one else .but the vassal. There is no reason
for
holding, that this particular
condition
has been
discharged.
In a similar
case
it
was
held to exist by reason of the privity of estate—
Lennox v. Hamilton,
5
D.
1357. In
Maitland v. Horne,
1 Bell's App. 1, there
was
no relation between superior and vassal,
which
makes all the
difference;
and so in
Breadalbane v. Sinclair,
5 Bell's App. 353;
Spottiswoode v. Seymer,
15
D.
458. An obligation to renounce the
casualties
of the superiority
was
held to be real, and to run
with
the lands, and that is analogous to the present
case—
Nasmith v. Story,
M. 5723; 10,276. So in a
case
like the present—
Wilson v. Agneiv,
9 S. 357. If the obligation is binding on the superior, then it is necessarily available to and enforceable by the vassal,
for
it
was
a mutual
contract.
But even if a title by assignation is necessary, then that title exists in the respondent. Such an obligation passes in a general
clause
of assignation of
writs,
which
conveys
all
writs
necessary to maintain the right
conveyed
by the
dispositive
clause.
This is implied in the
cases
of
Hamilton v. Montgomery,
12 S. 349;
Graham v.
Don,
15th
December
1814,
F.C.;
Renton v. Anstruther,
2 Bell's App. 214.
Cur.
adv. vult.
Chancellor
Westbury
Lords, the appellant is the superior in a
feu
contract,
under
which
the respondent is the vassal. The question raised is,
whether
the respondent is entitled to the benefit of an obligation of relief against augmentation of stipend
contained
in the original
feu
contract.
The appellant is not only superior, but also the representative of the superior
who
granted the original obligation, and it is admitted in the
cause,
that the appellant is liable if the respondent be in right of the obligation. The sole question, therefore, is,
whether
the obligation accompanies the
feu
on its transmission
from
vassal to vassal,
without
the necessity of obtaining a special assignation
from
the representatives of the original grantee.
As the feudal
relation of superior and vassal still exists between the appellant and the respondent, there is privity of estate between them, and
consequently
a right in the vassal to enforce against the superior every obligation
which,
by the terms of the
feu
contract,
entered into the relation as thereby
constituted,
and
which
from
its nature
was
intended to accompany the estate of the vassal.
Now the obligation in question, so far
as the terms in
which
it is expressed are material, is plainly intended to endure
for
the benefit of all persons entitled under the
feu
contract,
that is, of all succeeding vassals. The superior binds himself, his heirs and successors, in the superiority to the vassal, his heirs and successors in the
feu.
And the nature of the obligation is such as
was
plainly intended to accompany and
follow
the
feu
in its transmissions,
for
it is an engagement
Page: 1171↓
The obligation of the superior is for
himself, his heirs and successors; that the teinds, parsonage and vicarage,
disponed
by him to the vassal, his heirs and successors, shall be
free
from
all ministers' stipends,
future
augmentations, annuities, and other burdens to be imposed upon the said teinds except only such as
were
then subsisting, and presently payable.
The proposition of the appellant is, that this engagement is personal to the grantee, and stops unless specially assigned, with
him and his representatives, but
where
the original grantee or any succeeding vassal has
disponed
the
feu,
he
ceases
at once to have any interest in the obligation of the superior.
What,
then, becomes of the obligation?
Does
it remain
with
the grantee or his representatives,
who
have no longer any interest in it, or right to enforce it? or
does
it, in
conformity
with
the terms of the obligation and the spirit and interest of the
contract,
accompany the
feu
into the hands of the succeeding vassal?
The obligation relates directly
to the subject of the
feu
contract
and to the enjoyment of it by the vassal, and it is therefore,
from
the very nature of the engagement, an integral part of the
contract,
in
consideration
and return
for
which,
as part of the superior's grant and engagement, the
feu
duties
and other prestations are rendered by the vassal.
It is no answer to say, that the liability of the superior under such an obligation may exceed the whole
value of the
feu
duties.
This may shew, that the
contract
of the superior
was
originally improvident, but
does
not affect the legal
construction
or validity of the obligation.
In principle, therefore, it appears to me to be clear,
that the obligation in question is part of the
feudal
contract,
and is transmitted along
with
that
contract.
But little difficulty
could
have been
felt
on this point, if it had not been supposed in the
Court
below, that the
decisions
of this House in the
cases
of
Maitland v. Horne and
Breadalbane v. Sinclair, and the judgment of the late Lord
Cottenham,
were
in
favour
of the appellant. In my opinion those
cases
have no application to the present,
for
in them there
was
no privity of estate between the
contending
parties,
who
did
not stand in the mutual relation of superior and vassal.
I must, therefore, move your Lordships, that the decision
in the
Court
below be affirmed.
Cranworth
object of this suit
was
to make the appellant liable to the respondent in respect of
certain
augmentations of ministers' stipends
which
have been
duly
made,
whereby
the teinds of Braco have been heavily
charged
beyond the
charges
which
subsisted at the
date
of the
feu
contract
of 1705.
It is clear
on all the authorities, that the benefit of the obligation entered into by the Marquis of Montrose in 1705,
whereby
he bound himself and his heirs to
warrant
the teinds
free
from
all
future
augmentations, has not been
duly
assigned to the respondent so as to enable him to sustain an action
for
relief against the appellant as the personal representative of the Marquis. But the question is,
whether,
as superior, the
Duke
is not liable
without
any special assignation of
writs.
The Lord Ordinary held, that he is not. And the question having been argued before all the Judges, six of them, including the Lord Ordinary, adhered to his opinion and
were
for
affirming his interlocutor, and seven
were
opposed to it, so that there
were
seven in
favour
of the liability of the appellant, and six against it. The result
was,
that the appellant
was
declared
to be liable. He has appealed to your Lordships, and this House has now to
decide
in this
closely
balanced state of the authorities.
The Lord Ordinary and the Judges who
concurred
with
him
came
to a
decision
adverse to the pursuer,
who
is now the respondent, on the ground, that the obligation in question, though entered into in the original
feu
contract
by the superior
with
the person
who
was
thereby
constituted
his vassal,
was
not a
condition
of the
feu
right inseparable
from
the
feudal
relation of superior and vassal, but a mere
collateral
engagement entered into by the superior
with
his vassal
when
he
created
the
feu
right binding only him and his personal representatives.
The seven Judges who
formed
the majority
were
of opinion that the obligation in question
was
validly made a part of the
feu
contract,
so that every succeeding vassal had a right to
claim
the benefit of it against the superior
for
the time being in the same
way
as every successive superior has a right to insist against every succeeding vassal
for
the payment of the
feu
duty.
Which
of these views
was
right? My impression
was,
that the Lord Ordinary
was
right.
Certain
definite
duties
attach to the superior,
whoever
he may be, arising not
from
special
contract,
but
from
the nature of the
feudal
relation. The superior (as is pointed out by the Lord President) is bound to infeft and to enter the vassal, and to renew the right of every successive vassal according to his right,
whether
claiming
by
descent
or as a singular successor. On the other hand,
certain
well
known obligations attach,
without
being expressly mentioned, on the vassal; and on the principle “
cujus
est
dare
ejus est
disponere,”
the person
feuing
his land may stipulate
for
special payments, prestations, and
duties
to be rendered and performed by the vassal, as the
condition
of his holding the
dominium
utile of the land. But I have no authority
for
saying, that he
can
annex to the
dominium
directum,
which
he retains, an onerous obligation such as that now under
consideration,
so as to make it attach on the superiority. Before
feuing
the lands,
Page: 1172↓
My opinion, therefore, would
have been in
favour
of this appeal. But as I know, that my noble
friend
near me
concurs
with
the
Lord
Chancellor,
I shall not trouble your Lordships
with
any
further
observations. The
case
is one of great nicety, and though I have shortly stated the grounds on
which
I thought the minority of the Judges below
were
right, I readily
defer
to the opinions of the majority, and of my noble and learned
friends
who
heard the
case
argued at your Lordships' bar.
I will
merely add, that the two
cases
cited
in argument, and
which
were
decided
in your Lordships' House, have little or rather no bearing on the question. Neither of them
were
cases
between vassal and superior.
Maitland v. Horne merely
decided
that,
where
a vendor had entered into a
covenant
with
a purchaser similar to that now in question, a singular successor of the purchaser had no right of action against the representative of the
covenantor,
unless the right to the
covenant
had been specially assigned to him. In the other
case
of
Breadalbane v. Sinclair there
was,
as in this
case,
a
feu
contract,
but the action
was
raised, not against the superior
for
the time being, but against the personal representative of the original granter,
who
had entered into the obligation. The benefit of the obligation had not been
duly
transmitted, and the principle established in the preceding
case
therefore prevailed. These
cases
are
clearly
inapplicable to that now before the House.
Wensleydale
Lords, in this
case
I heard the argument in 1861, but I
was
unfortunately prevented
from
hearing the argument that took place last session, and I shall therefore give no opinion upon it.
Chelmsford
Lords, this is a
case
confessedly
of great
difficulty,
as
well
as of importance.
Where
so many learned Judges, necessarily more
conversant
with
the law to be administered than I
can
pretend to be, are so
closely
divided
in their opinions, I may
well
hesitate to express any
confidence
in the
conclusion
at
which
I have arrived, but I have not made up my mind on the subject
without
giving the most
careful
and attentive
consideration
to the
whole
case.
The solution of the question entirely turns upon the point, whether
the obligation to relieve the teinds
from
augmentations of the ministers' stipend is a mere personal obligation, or
whether
it enters or
forms
part of the
feu
contract.
If the obligation is merely personal, it is
conceded,
that a special assignation of the right to it
was
necessary, and all the Judges agree, that the pursuer
cannot
found
his title upon any such assignation. On the other hand, if, by the
feu
contract,
the obligation entered into the
constitution
of the
feu,
and so became a part of the newly
constituted
relation of superior and vassal, it
would
be inherently transmissible by the mere
continuance
of that relation.
The appellant, however, contends,
that the right to enforce this particular obligation
does
not run
with
the estate of teind to the vassal,—that it
was
at the utmost one of the
accidentalia
feudi,
spoken of by Erskine, 2, 3, 11,
which
the lord
could
not annex to the
feu
so as to prejudice his successor, or at all events, not
without
its
finding
its
way
into the
feudal
investiture.
But what
reason is there
for
saying that the lord, in the original
creation
of this
feu,
could
be restrained
from
granting the
dominium
utile, and reserving the
dominium
directum,
with
certain
obligations and
conditions
attached to it, at his
free
will
and pleasure? He
was
the absolute owner of the subject. His singular successors
could,
of
course,
have no reason to
complain,
because they
would
take
care
to ascertain the burdens or obligations belonging to the superiority before they purchased. His heirs
would
receive the superiority
from
him
with
the
conditions
upon.
which
he permitted it to
descend
to them, as he might, if he pleased, have alienated it altogether
from
them. If the obligation
was
made part of the
feu,
in its original
creation,
then, as according to
Craig,
quoted by Erskine, 2, 3, 20, “all
clauses
in the original
charter
are, in the judgment of law, implied in
charters
by progress, if there be no express alteration,” it
was
continued
by the several
charters
of
confirmation
of the superior, and by the precept of
clare
constat,
by
which
the
feudal
estate
was
transmitted to
Colonel
David
Graham.
The difficulty
in the
way
of
construing
this obligation to be more than a personal obligation to relieve
from
augmentation,
was
strongly urged by
comparing
it
with
the
clause
of
warrandice,
confessedly
a mere personal
contract,
binding only upon representatives. And it
was
asked,
what
difference
can
be suggested between a
warranty
of title generally and a
warranty
against a specific
claim
being made upon a part of the subject matter of the grant? The answer is, that the two things are entirely
different,
and therefore incapable of
comparison.
In the
words
of Lord
Cottenham
in the
case
of
Maitland v. Horne,
1 Bell's App. 63, “The nature of such a
contract
Page: 1173↓
It is not therefore by comparing
the obligation in question
with
the
contract
of
warrandice,
but by examining it in itself, that its real
character
can
be ascertained. It is
contained
in the grant by
which
the
feudal
relation to the teinds
was
originally
created,
and the terms on
which
they
were
to be held
were
permanently arranged. The vassal had agreed to purchase, not the teinds simply, but the teinds subject only to the existing burdens, and
free
from
any
future
augmentations of them. The exoneration of the teinds
from
all additional burdens
was
to be the
condition
and quality of the subject as between the lord and the vassal. This
could
only be effected by such an obligation as that into
which
the lord entered. He
could
not expressly exempt the teinds
from
liability to augmentation of stipend, because the liability is imposed by law, and the minister
could
not be prevented by such a stipulation between the parties
from
having recourse to the teinds
for
satisfaction of his stipend. The only mode in
which
he
could
give the vassal the benefit
for
which
he
contracted
was,
by annexing an obligation to the teinds,
which
would
accompany them
for
all
future
time, and afford them a permanent protection against
diminution.
And, that this intention might be more
clearly
shewn, the reason
for
the obligation is stated to be in regard that Mr.
David
Grahame had paid as great a price
for
the teinds, parsonage, and vicarage as
for
the stock of the lands—in other
words,
that he had paid an ample
consideration
for
the purchase of the teinds,
free
from
any additional burdens
which
might be afterwards imposed.
Taking the whole
of the
feu
contract
respecting the teinds together, it is substantially a grant of an interest in unincumbered teinds
conceived
in the terms of an obligation, and is not
collateral,
but an express
condition
of the
feudal
grant transmissible as an essential part of it to the successive vassals.
The question is not raised on behalf of a singular successor. If it had been, it would
have been necessary to
consider
how
far
the
case
was
decided
by the two
cases
of
Maitland v. Horne, and the
Marquis of Breadalbane v. Sinclair. The
former
of these
was
not a
case
where
the obligation to relieve the teinds
from
future
burdens
was
contained
in the original
feudal
grant, but it
was
a sale and
disposition
of lands
with
the teinds, made by a vassal,
with
an obligation to relieve his
disponee
from
future
augmentations. The superior had nothing to
do
with
this obligation, and it in no
way
entered into the relation between him and his vassal. There
was
nothing remaining in the
disponer,
in respect of the teinds, to
which
the obligation
could
be annexed. It
was,
to use the
words
of Lord
Cottenham,
“a
contract
perfectly
collateral
to the subject matter of the sale.” It
was
therefore necessarily a mere personal obligation not transmissible to singular successors in any other manner than by a special assignation not by virtue of a general assignation to
writs,
which
never operates in itself as a transmission of rights, but merely
for
the
defence
of right actually transmitted.
In the case
of
Breadalbane v. Sinclair the obligation to relieve
from
augmentation
was
contained
in the original
feu
charter
granted by Lord Breadalbane to James Sinclair; and Lord Breadalbane
was
a
defender
in the action brought
for
the relief stipulated
for
by the obligation. But Lord Breadalbane had alienated the superiority, and Sir Ralph Anstruther,
who
had become the superior,
was
dismissed
from
the action at an early stage of the proceeding, upon his motion to that effect, and
without
any opposition on the part of the pursuer. The action, therefore, became virtually a
claim
by a singular successor of the original grantee, in his mere
character
of heritable proprietor of the lands,
without
proof of any special assignation, upon an obligation
which,
having been
disannexed
from
the superiority, had become personal as to the party by
whom
it
was
originally entered into.
These cases,
therefore,
do
not appear to touch the question of an obligation entering into the original
constitution
of the
feudal
relation, and affecting the
condition
of the subject of the
feu
charter
or
contract.
Two cases
decided
in the
Court
of Session, and relied upon in argument, bear strongly upon the present question. In
Wilson v. Agnew,
9 S. 357, “the superior in a
feu
contract
agreed
with
his vassal, that the teinds
due
out of the lands
feued
should be taxed at a
certain
sum besides
feu
duty,
and bound himself to
free
the vassal of all teind and public burdens payable
furth
of the lands in all time
coming.”
The estate of the superior
was
subsequently taken up, in virtue of an onerous and mutual entail by the heir,
who
was
the lineal representative of the granter of the obligation, and
who
took up his estate, including the superiority. And he
was
held liable to
fulfil
the obligation as inherent in the
feu
contract.
Lord Balgray said—“The
defender,
Colonel
Agnew, represents the original party to the
contract,
who
was
proprietor in
fee
simple of the estate. The superiority of the land
for
which
the
feu
duty
and teind exemption
duty
were
paid is part and parcel of the entailed estate. By taking up the estate, the
defender
has right to these annual prestations
from
the pursuer, and has received them. But no heir of
Page: 1174↓
The case
of
Lennox v. Hamilton is of even
closer
application. There by the original
feu
charter
made in 1737, and granting lands and teinds, the superior bound himself to
warrant
the
feu
right
from
“all
future
augmentations of ministers' stipends that might affect the teinds above
disponed.”
A
charter
of
confirmation
was
granted by the superior in 1778 to a
disponee
of the original vassal,
which
declared
this general
confirmation
to be as valid and effectual to all intents and purposes as if the said
dispositions
and instruments of sasine before mentioned had been hereinbefore
verbatim inserted. In this
charter
the superior's obligation to relieve the vassal
from
augmentations of stipend
was
omitted, and the vassal
was
held bound to relieve the superior
from
all ministers' stipend. A subsequent
charter
to the same effect
was
granted in 1815, and
with
the same omission. And the vassal
was
held bound to the same extent as
with
respect to the
charter
1778. In 1798 the lands and teinds
came
by progress through a variety of singular successors, none of
whom
entered
with
the superior, to the pursuer's ancestor, and ultimately, by succession, to the pursuer himself. None of the
conveyances
in the
course
of the progress
contained
a specific mention of the obligations to relieve against augmentation, but all of them
contained
an assignation to the
writs
and evidents of the lands,
with
the
whole
clauses
of
warrandice,
and other
clauses
therein
contained.
The pursuer,
who
was
a singular successor in the
feu,
brought an action of relief against the superior,
founded
upon the obligations in the original
charter,
and it
was
held, that he
was
entitled to recover. One of the grounds
for
sustaining his right
was,
that the obligation sued upon
formed
part of the original
feu
charter,
and that it
could
not be held to be
discharged
by its having been omitted in the subsequent
charters
by progress granted by the superior. Lord
Fullerton
said, “The superior
feued
out the lands, and made the obligation to relieve
from
augmentations a part of his obligation as superior. So that,
when
the vassal
came
to sell, he must be held to have substituted the purchaser
for
himself in that original
contract,
and thus brought every subsequent acquirer in
direct
connexion
with
the superior in relation to the obligation of relief. There is good ground
for
holding, that such an obligation
would
go
with
the lands, and that the purchaser
would
be entitled to insist, that the superior should repeat it in any new
charter.”
These cases
seem to me to
furnish
ground
for
the
distinction
upon
which
this
case
may be
decided.
When
an absolute
disposition
of teinds is made
with
an obligation to relieve
from
burdens, this must necessarily be
collateral,
and therefore personal, because there is no subsisting relation in the teinds between the parties. But
where
the superiority is reserved, and the
dominium
utile only transferred, the obligation originating
with
and being annexed to the
feudal
relation at the time of its
creation,
enters into and
forms
part of its original
constitution,
and so passes to each vassal as an intrinsic
condition
of the subject.
After careful
consideration,
I have arrived at the same
conclusion
with
my noble and learned
friend
on the
woolsack,
that this is a
case
in
which
the obligation in question is one of the legal
conditions
of the
feudal
grant, and that the interlocutor of the
Court
of Session is therefore right, and ought to be affirmed.
Interlocutors affirmed
with
costs.
Solicitors:
For
Appellant,
Loch and Maclaurin, Solicitors,
Westminster.—
For
Respondents,
Connell
and Hope, Solicitors,
Westminster.