Scottish Court of Session Decisions

John Allan Maconochie Welwood of Garvock, Fifeshire, and Charles Cornelius Maconochie of Avontoun, West Lothian, the trustees acting under a trust-disposition and conveyance by the said John Allan Maconochie Welwood in favour of himself and others dated 1st January 1903, first parties, William Mungall of Transy, Transy House, Dunfermline, second party, and Mrs Agnes Maria Mary Clarke or Beveridge and others, trustees acting under the trust-disposition and settlement of the late Charles Hill Beveridge of Bonnytoun, dated 22nd September 1917, third parties, brought a Special Case for the opinion and judgment of the Court as to the liability of the first parties to relieve the second and third parties of augmentations of stipend.

The first parties were the trustees of John Allan Maconochie Welwood, heritable proprietor of the lands of Garvock, and the direct representative of Henry Wellwood in the superiority of certain subjects which formed parts of the lands of Garvock, one of which he had disponed by feu-contract between himself and Alexander Williamson, tenant in Pitreavie, and his wife, dated 30th May 1737, and the other by feu-con tract between himself and George Davidson dated 9th and 11th December 1738. The second party was the proprietor of the dominium utile of the subjects disponed by the first feu-contract, and the third parties were the proprietors of the dominium utile of the subjects disponed by the second feu-contract.

In the feu-contract of 1737 the subjects were disponed “together with the teinds of the heall lands @ disponed and pertinents of the same,” and the deed contained the following clauses—“And in regard the s ^d lands @ feud are valued in the cess books in cumulo w ^t y ^e sd Henry Wellwood's other lands of Garvock therefor its hereby declard and y ^e s ^d Alexr. Williamson his s ^d spouse and son by yr acceptation hereof agree that the valued rent of y ^e sd lands and oy ^rs @ feud shall be holden and estimat to be twenty pounds Scots yearly in all time coming And ye sd Alexr. Williamson his sd spouse and son and his forsds also relieving ye ^sd Henry Wellwood and his forsds of all cesses and oyr publick burdens due and payable forth of ye sd lands @ disponed after ye ^sd term of Martinmas 1738 and yt in proportion to the said twenty pound valued rent For all other burdens exaction question demand or secular service which may be any ways askt or required forth of y ^e s ^d lands teinds and oy ^rs w ^t y ^e pertinents @ wrin in feu ferm or any part y ^r of in time coming And which charter of feu ferm shall bear and contain this clause of warrandice following And now as if y ^e sd charter and infeftment were already made and perfected and then as now the s ^d Henry Wellwood hereby binds and obliges him and his forsds (under ye burden of payment of ye ^sd five hundred merks resting of ye ^sd entry) to warrant y ^e same infeftment with this present disposition lands teinds and oyrs for ^sd w ^t y ^e pertinents to be good valid and sufficient free safe and sure to the s ^d Alexr. Williamson his sd spouse son and his forsds from all perils burdens dangers evictions and inconveniencys qts ^or at all hands contrair and agt all deadly as law will And also to free and relieve ye ^sd Alexr. Williamson his s ^d spouse son and his fors ^ds of and from payment of all feu and teind dutys minister stipend schoolmaster fees payable forth of yesd lands in time coming And upon the other part the s ^d Alexander Williamson and his sd spouse wt one consent hereby bind and oblige y ^m conjunctly and seallie y ^r heirs exors and successors qts ^or… to make payment and relieve y ^e sd Henry Wellwood and his forsds of all cesses and other publick burdens due and payable for or forth of ye ^sd lands teinds and others fors ^d after y ^e s ^d term of Martinmas 1738 & y ^t in proportion to ye ^sd twenty pound Scots valued rent.”

The feu-contract of 1738, in which there was no conveyance of teinds, contained the following clauses—“To be holden of the said Henry Wellwood and his foresaids in feu ferm fee and heritage for ever for yearly payment of … and for payment of cess and other publick burdens corresponding to the sum of thirty four pound ten shilling Scots money which is hereby agreed to be the valued rent of the saids heall lands above disponed … and for that effect the said Henry Wellwood binds and obliges him and his foresaids to make grant subscribe anti deliver to the said George Davidson and his foresaids a valid and formal feu-charter of the said lands to be holden in feu ferm for payment of the feu-duty above specified with and under the conditions and qualications above exprest which are hereby ordained to be insert in the said feu-charter … and furder the said Henry Wellwood binds and obliges him and his foresaids to warrant the foresaids lands with this present feu-contract and infeftment to follow hereon to be free safe and sure to the said George Davidson and his foresaids from all perils burdens dangers incumbrances and inconveniences whatsoever at all hands and against all deadly as law will and to free and relieve the said George Davidson and his foresaids of and from the payment of all feu and teind dutys minister's and schoolmaster's stipends payable forth of the saids lands in all time coming For which causes and on the other

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part the said George Davidson binds and obliges him his heirs executors and successors whatsoever to … free and relieve the superior of the cess and other publick burdens corresponding to the foresaid sum of thirty-four pound ten shilling Scots which is hereby agreed to be the valued rent of the saids lands above disponed.”

The consideration for each feu consisted of a grassum and an annual feu-duty.

The Case set forth—“The teinds of the lands contained in the said feu-contracts had not at the date thereof been valued, nor has any valuation of the said teinds since been made. The parish of Dunfermline, within which the said lands of Garvock lie, is a collegiate charge. From the recital in the proceedings raised in 1748, hereinafter referred to, it appears that by decreet of modification and locality obtained before the Commissioners of Modification of Stipends and Valuation of Teinds upon 11th January 1650 at the instance of the then second minister of the said parish, his stipend was modified at two chalders of victual, half bear, half oats, and 800 merks of money. From the recital in the proceedings raised in 1763, hereinafter referred to, it appears that by decreet of modification and locality obtained before the said Commissioners upon 28th March 1683 at the instance of the first minister of the said parish, his stipend was modified at 54 bolls bear, 78 bolls white oats, and £100 Scots, with 100 merks Scots for communion elements. The said decreets of 1650 and 1683 cannot be traced, and the whole information which the parties have been able to obtain regarding the early history of the teinds of the said parish is contained in the recitals from the processes of 1748 and 1763. The parties are agreed that the above stipends were those in existence at the respective dates of the said feu-contracts.

Subsequent to the institution of the Court of Teinds in 1707 no application for augmentation of stipend was made by either minister of the said parish until in 1748 the second minister raised an action of augmentation, modification, and locality, upon the ground that there was upwards of £500 sterling of free teind after deducting the stipend payable to the first minister, and that the decreet of 1650 had never received its full effect because 50 merks had been deducted from the stipend therein allocated to him and paid to the minister of Carnock. He accordingly craved that his full stipend should be made up to him, and that a further augmentation should be granted to him. By decreet of modification and locality dated 28th February 1753 the Lords added, eiked, and augmented to the second minister his full stipend under the said decreet of 11th January 1650, and granted him a further augmentation of 100 merks Scots and one chalder of meal, makin all 900 merks Scots, 1 chalder bear, 1 chalder oats, and 1 chalder meal. The said locality was approved and made final on 28th February 1753.

In 1763 an action of augmentation, modification, and locality was instituted by the first minister of the said parish for the purpose of having the stipend allocated to him by the said decreet of 28th March 1683 augmented. So far as can be ascertained no locality was made up in this process and no augmentation was granted; the process is asleep at the present time. Thereafter a further process of augmentation, modification, and locality was instituted by the first minister on or about 15th February 1764, in which a decreet was pronounced on 10th February 1768, which proceeded on the narrative that the stipend then paid to the first minister under the said decreet of 28th March 1683 amounted to 54 bolls bear, 78 bolls wheat oats, £100 Scots, £40 Scots for house-mail, and 100 merks for communion elements. Under the said decreet the stipend of the first minister was modified at 2 chalders bear, 2 chalders meal, and £600 Scots for stipend, with 100 merks for communion elements. Following upon the said decreet a locality was made up which was reduced, but the Lords subsequently approved of a rectified locality given in by the Marquis of Tweeddale. A considerable part of the said process is lost, but that the said first minister's stipend remained practically as fixed by the said decreet of 10th February 1768 appears from the recital in a subsequent process raised in 1793 in which the first minister's stipend is stated to be £600 Scots, 32 bolls meal, 32 bolls bear, £40 for house-mail.

Since these dates several processes of augmentation, modification, and locality have been instituted by both ministers of the said parish, and augmentations have been granted, a detailed specification of which is unnecessary for the purposes of the present case.

Up till about the year 1864 the lands of Garvock as a whole (including the portions thereof disponed by the said feu-contracts) were localled upon direct for stipend, and the stipend and augmentations thereof were paid by the superior. There is no evidence to show whether or not he claimed or recovered any proportion from the vassals. [The sentence in italics was deleted during the hearing of the case.] In the course of proceedings for augmentation instituted in 1860, in which interim decree was pronounced in 1863, and final decree on 24th February 1882, the vassals were for the first time entered in the state of teinds and localled upon direct for their share of stipend as has been the case in subsequent localities. The rectified state of teinds, prepared in 1880, contains the following statement:— Heritable Rights.—‘39. Thomas Spowart, Esq., formerly Mr Wellwood, for lands which belonged to Mr Clark extending to 32·41 acres of the wood and wards of Garvock. When these lands were feued the superior bound and obliged himself and his heirs and successors to free and relieve his vassal and his heirs and successors of all stipend and other burdens in all time coming. Since then the superior has been in use to relieve the vassal from payment not only of the stipend but of all augmentations imposed thereon.… 40. William Beveridge of Bonnington, writer, Dunfermline, for lands extending

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to 41·88 acres of the woods and wards of Garvock (article 34) above. These lands were acquired from the superior in manner similar to those referred to in the preceding article and for reasons therein stated the superior Mr Wellwood was in state of teinds 177 of process there stated for this article.…’ The lands referred to in the above-recited articles 39 and 40 include the lands contained in the said feu-contracts.

Since 1863 the vassals have had to pay their share of the stipend direct. They thereupon made a claim against the superior for relief and pleaded the obligation in their favour in the feu-contracts. The superior repudiated liability, but the vassals deducted the stipend from their feu-duty each year before payment for the period between 1864 and 1876 so far as the second party is concerned, and for the period between 1864 and 1881 so far as the third parties are concerned, the question of liability remaining an open one between the parties. Since these periods the superior has refused to accept anything less than full payment of the feu-duty, and the vassals have retained the amount of their feu-duty.

The first parties admit that in respect of the terms of the said feu-contracts they are under obligation to relieve the second and third parties of all payments made by them respectively of old stipend, but the whole parties interested are now desirous to have settled the various questions as to their respective rights under the said feu-contracts, and in particular as to whether the first parties and their successors are bound to relieve the second and third parties in all time coming of all payments in respect of augmentations of stipend.

The first parties contend (1) that upon a sound construction of the said feu-contracts the obligation therein imposed upon the superior was to relieve the vassals of stipend as it existed at the date of the original grant, and did not extend to augmentations of stipend granted thereafter; (2) that in any event the obligation of relief did not extend to any augmentation granted subsequently to that of 28th February 1753 in the case of the second minister and to that of 10th February 1768 in the case of the first minister, in respect that according to the settled practice of the Teind Court at the date of the contracts and for more than forty years thereafter only one application for augmentation to that Court could be entertained, or could have been within the reasonable contemplation of the parties, and that the decision of the House of Lords nearly fifty years later, which sustained the competency of further augmentations, created a new liability by supervening law which was not covered by the obligation of relief; and (3) that accordingly the first parties are not bound to repay to the second party or the third parties augmentations of stipend, or at any rate the augmentations in excess of those which were granted in 1753 and 1768 paid by them or their predecessors, nor are they liable to relieve them or their successors of future augmentations.

The second party contends (1) that the obligation contained in the said feu-contract dated 30th May 1737 to free and relieve him and his predecessors of and from payment of, inter alia, all teind duties and minister's stipend payable forth of the said lands in all time coming is an inherent condition of the feu and transmitted to him from the original vassals without special assignation thereof; (2) that the said obligation applies not only to stipend exigible at the date of entry under the said feu-contract but to stipends and augmentations thereof thereafter, and that these and future augmentations were not and will not be liabilities created by supervening law; and (3) that accordingly the second party is entitled to repayment from the first parties of any stipend or augmentations thereof which he may have paid in respect of his said property.

The third parties contend (1) that by its terms the said obligation of relief in the said feu-contract of 1738 applied not only to such stipend as was exigible at the time, but that it also applied to any augmentation thereof; and (2) that accordingly they were entitled to have repaid to them not only any stipend paid by them but also any augmentation of stipend they may have paid.”

The questions of law were—“1. Does the obligation of relief of stipend contained in the said feu-contract to Alexander Williamson and his foresaids extend to ( a) the augmentations of stipend granted in 1753 and 1768, and ( b) subsequent augmentations? 2. Does the obligation of relief of stipend contained in the said feu-contract to George Davidson and his foresaids extend to ( a) the augmentations of stipend granted in 1753 and 1768, and ( b) subsequent augmentations?”

Argued for the first parties—In neither feu-contract was the obligation of relief such as to cover future augmentations of stipend. Augmentations could be granted again and again— Wemyss v. Macqueen, 1808, 5 Pat. App. 210; Morrison “Stipends,” App. 6; Connell on Tithes, App. 120, p. 313—but future augmentations were not covered by a clause of relief unless it expressly said so—Bankton's Inst., ii, 3, 121; More's Notes to Stair, i, 93, Note M; Ersk. Inst., ii, 3, 39; Connell on Tithes, vol. ii, p. 104; Duff Feudal Conveyancing, p. 89; Plenderleath v. Tweeddale, 1800, M. 16,639, F.C. January 31, 1800; Alexander v. Dundas, F.C., June 9, 1812; Hopetoun v. Copland, F.C., December 8, 1819; Hamilton v. Calder, F.C., June 13, 1823; Hope v. Speares, 1837, 15 S. 1288; Scott v. Edmund, 1850, 12 D. 1077; Stevenson v. Speir's Trustees, 1858, 20 D. 651. Here the feu-contracts contained no such express obligation. The meaning of the clauses of relief in the earlier contract was that the superior was to relieve the vassal of obligations and burdens, including payments out of teinds, affecting the rest of the estate, but to which the vassal might be subjected in respect of his ownership of a part, while the vassal was to relieve the superior of burdens affecting the part disponed. The later feu-contract was to be regarded in a similar light. The rule as to

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future augmentations had since 1832 been modified in some cases so as to allow implication or usage to extend the meaning of clauses of relief, but in this case there was no room for implication and there was no evidence of usage. The rule applied whether there had been a conveyance of teinds or not, though it was stronger in the former case, and had been upheld even where there was usage to the contrary— Alexander v. Dundas, supra; More's Notes, supra. Hopetoun v. Jardine, F.C., July 3, 1811, which might be regarded as unfavourable to the first parties, had been overruled in Hopetoun v. Copland, supra. Low v. Bethune, F.C., January 31, 1821, and Cuninghame v. Cuthbertson, 1828, Sh. Teind Cases, 175, 4 Fac. Dec. 415, were decided on specialties, and in Wilson v. Agnew, 1831, 9 S. 357, the obligation was of the nature of an insurance against all payments exigible from teinds— The Governors of Heriot's Hospital v. M'Donald, 1830, 4 W. & S. 98, was decided on usage. Obligations of relief from statutory burdens had been similarly interpreted— Scott v. Edmund, supra—but the rule was more rigid in the case of payments out of teinds, The decision in the North British Railway Company v. Magistrates of Edinburgh, 1920 S.C. 409, 57 S.L.R. 344, was not therefore applicable. Stevenson v. Speirs' Trustees, 1858, 20 D. 651, and Campbell's Trustees v. Dingwall, 1865, 4 Macph. 50, were decided on usage. In the former the teinds were not conveyed, and in the latter the decision was founded on other clauses of the deed. In Pagan v. Macrae, 1860, 22 D. 806, augmentations of stipend were not in question, there was no conveyance of teinds, and the teinds were valued. In Preston v. Magistrates of Edinburgh, 1870, 8 Macph. 502, there was no stipend exigible at the time of the contract. (2) There was no evidence of usage. The mere fact that the superior had paid the augmentations was not enough. It happened long ago, and there was no evidence as to whether or not the superior had recovered the payments from the vassals. It required very strong evidence of usage to upset the legal presumption. (3) In any event the obligation of relief did not cover more than one augmentation. From 1707 until 1779 it was the established rule that only one augmentation of stipend could be granted—Connell on Tithes, i, 391, 399, 402, ii, 108; Buchanan, Teinds, p. 225; Milligan v. Heritors of Kirkden, 1779, M. 14,816, revd., 2 Pat. App. 621; Mitchell v. Heritors of Tingwall, 1786, M. 14,817, revd., 3 Pat. App. 140; Wemyss v. Macqueen, supra. This must have been in the minds of the parties at the dates of the feu-contracts. The further augmentations were in the same position as new burdens imposed by statute which were not covered by an obligation of relief— Dunbar's Trustees v. British Fisheries Society, 1878, 5 R. 350, 15 S.L.R. 227, 5 R. (H.L.) 222, 15 S.L.R. 772.

Argued for the second parties—An obligation to relieve from all teind duties and minister's stipend in time coming covered future augmentations of stipend. Teind duties meant all claims for stipend, and included augmentations of stipend— Pagan v. Macrae, supra, per Lord Kinloch at p. 820, Lord Ardmillan at p. 822, Lord Curriehill at p. 825, and Lord Deas at p. 828; Reid's Trustees v. Sutherland, 1881, 8 R. 512, 18 S.L.R. 326. The vassal was in no worse position where there was a conveyance of teinds. The obligation in favour of a vassal to whom the teinds were conveyed could only mean that he was to be relieved of all claims for teinds. Usage was not necessary to establish the right to relief. Campbell's Trustees v. Dingwall, supra, was decided on the assumption that the teinds were conveyed, and weight was given to the terms of the obligation apart from usage. Where there was usage it was clear from the authorities that the obligation covered future augmentations— Campbell's Trustees v. Dingwall; Stevenson v. Speir's Trustees, supra; Pagan v. Macrae, supra. (2) Here there was a clear case of usage. The fact as before the Court that the superior had paid the augmentations during a long period. There could be no speculation as to whether or not he had recovered the payments from the vassal— Blythe's Trustees v. Milne, 1905, 7 F. 799, per Lord Kinnear at p. 808, 42 S. L. R. 676. (Lord Skerrington referred to the Court of Session Act 1868, section 63.) (3) There was no definite rule as to the number of. augmentations which might be granted. (The Court intimated that it was not necessary to hear counsel on this point.)

Argued for the third parties—The case was ruled by the decision in Pagan v. Macrae. The meaning of teind duties and stipend was not limited to valued teinds, but included every duty exigible for teinds. This view of the meaning was also taken in Low v. Bethune, and Campbell's Trustees v. Dingwall. But the third parties did not require to rely on Pagan v. Macrae. Where there was no conveyance of teinds and the superior was titular, there was a presumption that he was liable for augmentations of stipend, which were payable out of teinds. Otherwise the vassal's burden would be increased by augmentations of stipend. Further, the clause in its natural meaning covered augmentations. All stipend included augmentations, and the words “in time coming” pointed to their i ncl usion—Duff's Feudal Conveyancing, p. 89; Low v. Bethune, Cuninghame v. Cuthbertson, Preston v. Magistrates of Edinburgh. In Hope v. Speares the teinds had been virtually conveyed though not expressly. Further, the obligation here was more than merely warrandice of the subjects. It was an undertaking to indemnify against something in addition. On the question of usage the third parties adopted the argument of the second party.

At advising—