Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. V.

Clauses burdening Conveyances.

The Duke of Norfolk
v.
The Annuitants of the York-Buildings Company

Date: 21 December 1750
Case No. No 74.

The annuitants of the York-Buildings Company had right to annuities to the extent of a certain sum, and security, by infeftment for a smaller sum. Whether as the sum due was reduced by death of the proprietors within the sum secured, the infeftment was a security for the arrears?

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It is enacted 6to Geo. I. for enabling such corporations as should purchase estates forfeited by the Rebellion in 1715, to grant annuities forth thereof, That it should be lawful for bodies politic and corporate, as had purchased or should purchase any part of the said estates, to grant or settle rent-changes or annuities forth thereof:” And it is enacted, 7mo Geo. I. to enable the York Buildings Company, who had purchased several of these estates, to sell annuities by way of lottery, —That it should be lawful to the said Company to grant rent-charges and annuities, to the full extent and value of such of the estates as were or should be at any time by them purchased, by the way of lottery; and for any person or body politick or corporate, by that method, to purchase annuities of the said Company.”

The Company having granted several annuities by the way of lottery, disponed, 13th October 1727, their estates to certain persons, “for the use and behoof of the annuitants and their assigness; and for their further security, and more sure payment of their respective, annuities belonging to them, as the same were particularly specified in a list or schedule under their common seal, of the date of that disposition; which was holden as therein repeated. brevitatis causa;” and declared that it should not be in the power of the trustees, or any of them, nor of the annuitants or any of them, to enter to the possession of the lands, or to uplift mails and duties, unless upon default of punctual payment of the said annuities in terms of the bonds granted to the said annuitants. The schedule referred to, and which was annexed to this disposition, contained a list of annuities extending to L. 10,453 Sterling, though both the disposition and infeftment thereon, and the schedule itself, mentioned the total sum as only amounting to L. 10,067.

The Duke of Norfolk and other postponed creditors of the Company, insisted in a reduction of the annuitants' right; wherein the Lord Ordinary pronounced the following interlocutors, 28th February 1749, finding “That the infeftment in favour of the Trustees of the York-Buildings Company, was good and effectual to the extent of the sum of L. 10,067 therein mentioned, and no more, for the security of the whole nominees proportionally mentioned in the schedule annexed to the disposition; and therein, and in the sasine taken thereon referred to; and further, that the said infeftment was good and effectual, to secure the annuities of such of the several nominees or annuitants aforesaid, as from time to time survived those who deceased, since the granting thereof, and until they should recover full payment of their annuities.” And 30th June, finding, “That the said infeftment was good, and subsisted in the persons of the said trustees, for the behoof of the said annuitants, for securing to them their several respective annuities, until they and each of them should recover payment respectively.”

By these interlocutors, though it was found the whole had only right to draw out of the estates the annual sum of L. 10,067, yet by as the death of the annuitants, this sum came to exceed the annuities due to the annuitants surviving, it was determined that the said sum might still be drawn, till payment of the arrears incurred on the full sum of L. 10,453, to which the severals in the schedule amounted, though erroneously calculated to less.

Pleaded in a reclaiming bill, Though this right is granted to a few in name of the whole annuitants, yet no powers are granted to them; it is only a right executed in this form, to save the inserting a catalogue of names; and is not like as when an estate is disponed to trustees to be sold for the common benefit; each of the annuitants has a separate real right, for a sum proportioned to his bond, as 10,067 bears to 10,453, and this is at an end by his death, and cannot encrease the real right of any other which was originally fixt by the same proportion.

Answered, The annuitants have right by their bonds, to L. 10,453 in security whereof they are infeft in L. 10,067, and though there can no more be drawn annually out of the estates, yet this sum remains payable while any part of the debt secured is due.

“The Lords found that the annuitants had a real right upon the estates disponed, for an annuity extending to L. 10,067, and no more; and found them preferable on the said estates for payment thereof; and found the subsequent creditors had not access to recover their payment, till after payment of the said annuity, and all arrears incurred thereon; and that then they had access.”

Act. H. Home. Alt. Lockhart. Clerk, Gibson. D. Falconer, v. 2. No 174. p. 208.