United Kingdom House of Lords Decisions

The defence put in on the part of his Grace insisted that the obligation in the feu contract was a personal and collateral obligation, which did not run with the land, and which had not been transmitted by special assignation, so as to sustain an action of relief by a singular successor.

The Lord Ordinary ^(a) on the 12th November 1857 pronounced the following Interlocutor:—

Finds that the obligation of relief against future augmentations of stipend in the feu contract has not been duly transmitted to the Pursuer. Therefore sustains the objection to the Pursuer's title, dismisses the action, and decerns. Finds the Pursuer liable in expenses, &c.

To this Interlocutor his Lordship annexed the following learned note:—

The obligation of relief in the feu contract of 1705 is clear and unequivocal in its import. By that deed the Marquis of Montrose conveyed the lands of Braco, and others, with the teinds, to David Graham, clerk of the bills, in life-rent, and James Graham, his eldest son, in fee, and became bound “to warrant the said teinds 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, except allenarly the ministers' stipends and schoolmasters' fees after mentioned, presently payable furth of the said teinds.” Thus the superior undertook an express obligation to relieve the disponees of all future augmentations of stipend which might be imposed after the date of the grant.

If any question had arisen regarding augmentations of stipend with the original parties to the feu contract, there can be no doubt this obligation would have been effectual. But assuming the obligation to be well constituted in the first instance, the point now raised is whether it has been duly transferred to the Pursuers under the titles whereby they have acquired right to the lands and teinds.

By the original feu contract and sasine thereon, in 1705, James Graham, as fiar, acquired full right to the lands and teinds, and

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( a) Lord Mackenzie.

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was also vested with the obligation of relief against future augmentations. James Graham having contracted debts, three of his creditors led separate adjudications against him of the lands and teinds of Braco, in 1719 and 1720. To these three adjudications, Mungo Graham of Gorthy acquired right by dispositions and assignations from the creditors, upon which he obtained a charter of adjudication from the superior, and it is said was infeft thereon in 1745, though the sasine has not been produced.

In 1748 Mungo Graham conveyed the lands and teinds of Braco to Colonel afterwards General David Graham, who was the eldest lawful son of the deceased James Graham, the fiar in the original feu contract of 1705. In virtue of this conveyance General David Graham obtained a charter of resignation from the superior, under which he was infeft in 1765. Besides this title, founded on the adjudications, General David Graham, as heir to his father James Graham, obtained from the superior a precept of clare constat, upon which he was infeft in the lands and teinds of Braco in 1797.

So standing the titles, General Graham's testamentary trustees sold the lands and teinds of Braco to James Masterton, with entry at Martinmas 1800, and he was assigned into the unexecuted precept in the trust settlement. The assignation to the writs in the disposition to Masterton was thus expressed:—

“And in order that the said James Masterton and his foresaids may obtain themselves infeft and seised in the said lands and others above disponed, with the pertinents, we hereby make, constitute, and ordain him and his foresaids our cessioners and assignees, not only in and to the whole writings, rights, titles, and securities, old as well as new, of and concerning the said subjects, made, granted, and conceived in favour of us, or the said David Graham, his authors and predecessors, and particularly, without prejudice to the generality foresaid, in and to the said trust disposition by the said David Graham in favour of us and certain other trustees therein named, with the procuratory of resignation and precept of sasine, so far as relates to the subjects hereby disponed, and whole other clauses therein contained, that in virtue thereof, and of the procuratory of resignation or precept of sasine therein contained, and hitherto unexecuted, the said James Masterton and his foresaids may be infeft and seised in the subjects above disponed.”

There is an obligation by the sellers to relieve Masterton of ministers' stipend and other public burdens prior to his entry at Martinmas 1800, the purchaser being taken bound to bear these burdens in all time thereafter.

In 1843 the lands and teinds came by progress to the late George Drummond Stewart, and ultimately though a variety of singular successors to the Pursuers of this action.

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None of the charters or precepts granted by the superior after the date of the feu contract in 1705 made any reference to the obligation to relieve the vassal of augmentations of stipend. What is still more important, none of the conveyances in the numerous transmissions of the property to singular successors made any specific mention of this obligation of relief; and when the lands were sold, the purchaser was taken bound to pay the minister's stipend and other public burdens from the date of his entry, without reference to any claim of relief against the superior.

The first augmentation of stipend after the date of the grant was allocated upon the teinds of Braco in 1729. Subsequent augmentations of stipend were awarded in 1792, 1806, 1826, and 1846. It does not appear whether the augmented stipends from 1729 to 1800 were paid by the proprietors of the lands without seeking relief from the superior, though this is averred by the Defender, and said to be not known to the Pursuers. On the other hand, it is admitted that from the date of Masterton's entry in 1800 to 1845, the Defender and his father paid the augmented stipends either to the proprietors of Braco or directly to the minister of the parish; but it is said this was done by them “in ignorance of their legal rights, and without inquiry as to the title of the proprietors of Braco to demand payment.” The Pursuers in this action seek relief from the augmentations since 1845, under the obligation contained in the original feu contract.

According to the judgments of the House of Lords in the cases of Maitland v. Horne, 21st February 1842, and Sinclair v. The Marquis of Breadalbane, 14th August 1846, an obligation of relief against augmentations of stipend is not of the nature of warrandice in the proper sense of the term, but a personal obligation of relief which does not necessarily follow the title of the lands and teinds, or pass as a pertinent thereof, but must be transmitted by express title of assignation or otherwise. When the case of Horne was before the Court, Lord Moncreiff, with some hesitation, indicated an opinion that an obligation of this nature, though not passing simply with the lands and teinds, might be distinguished from such a right as a tack of teinds, to which the case of Graham v. Don related to the effect of holding it to pass as a title deed by a general clause of assignation of the writs and evidents. Lord Cottenham, however, rejected that distinction, and adopted the decision of Graham v. Don, as showing that, even with a very broad clause of assignation to writs and evidents, such an obligation does not pass by the title to the lands. And the question was put by his Lordship,—“If it requires a particular assignation, what evidence have we of any such assignation?” From this it may be inferred that a general assignation to writs and evidents was not considered the proper form for transmitting such a right. Accordingly, in the case of Sinclair v. The Marquis of Breadalbane, Lord Moncrieff concurred

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with Lord Wood as to the true import of the judgment of the House of Lords in the case of Horne, and expressed a decided opinion (6 D., p. 393) that an obligation for relief of augmentations was a right which required “to be taken up and transmitted as among heirs by general service or express assignation, and which cannot pass to singular successors without such express assignation.” This view was confirmed by Lord Campbell, who observed (5 Bell's App. 37) in the case of Maitland v. Home,—“This House held that an obligation by a disponer of lands to relieve the disponee of all future augmentations of stipend does not, without a special assignation, pass to singular successors. Here no such special assignation is alleged or proved. That decision has been complained of, but it is binding on this House as well as on the Courts below.”

In Spottiswoode v. Seymer, 2nd March 1853, the Lord President said—“It appears to me that these two decisions in the House of Lords establish that there must be some direct express transmission of the right to the party who founds upon it. Lord Moncreiff says it may be transmitted by service or by assignation.” Lord Fullerton in the same case remarked:—

“I see no objection to an obligation of this kind, peculiar as it is, being carried by express assignation, and that was the expressed opinion of Lord Cottenham in the case of Maitland v. Home. I may also add, that I see no extrinsic objection to such a personal obligation, partaking, as it does, of many elements of a real character, being taken up by service.”

These opinions, it is thought, afford no countenance to the notion that a general assignation of writs and evidents in a disposition of the lands and teinds would be the proper form of transmitting such a right; and it seems impossible to reconcile that doctrine with the established principle that an assignation to writs does not operate as a conveyance of rights, and can only be used to support what is actually conveyed, according to the decision in Graham v. Don, 15th December 1814, and Hamilton v. Montgomerie, 28th January 1834.—See also Lord Ivory's opinion in the case of Trinity Hospital, 18th June 1851.

In support of his case the Pursuer mainly relies on the decision in Lennox v. Hamilton, 14th July 1843, 5 D., 1357. There it was assumed that all the conveyances contained an assignation to the writs and evidents of the lands and teinds, “with the whole clauses of warrandice and other clauses therein contained.:” and it seems to have been the opinion of the Judges that the assignation was in terms sufficiently broad to constitute a special assignation to the obligation of relief. Though that case related to a clause of a somewhat special nature, Lord Moncreiff thought it proceeded on far too narrow a construction of the judgment of the House of Lords in the case of Home (6 D., 393), and the authority of the decision

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appears to be materially shaken by the opinions expressed by the House of Lords in the case of Sinclair, as well as by the Judges of this Court in subsequent cases.

Besides, in the present case, the Pursuer is not in a position to found on an unbroken series of conveyances, all containing an assignation to the writs and evidents of the lands and teinds, “with the whole clauses of warrandice, and other clauses therein contained.” No doubt such an assignation occurs in several transmissions of the property, but there are other important links in the progress where it is wholly awanting.

General David Graham, the eldest son of James Graham, the fiar in the original feu contract, it has been explained, made up two titles to the lands and teinds of Braco. 1st, as heir to his father, he obtained a precept of clare constat; and, 2nd, as a singular successor, he acquired right by progress to the three adjudications which were led against his father's estate by creditors. In this discussion, the first of these titles may be entirely thrown out of view; because, according to the decision in Sinclair's case, the precept of clare constat could transmit nothing but the feudal estate which belonged to James Graham, and did not carry the obligation of relief. The second title of General Graham as a singular successor seems equally defective. The adjudications appear to have been led against James Graham, as lawfully charged to enter heir in special to David Graham, his father, upon the erroneous supposition that the lands and teinds sought to be adjudged belonged to the father, and “would pertain to the said James Graham, now of “Braco, his son, if he were entered heir in special to him,” whereas David Graham was a mere life-renter, whose right ceased with his life, while James Graham stood as the absolute fiar under the investiture. Whether these adjudications were properly deduced, so as to attach the lands and teinds of Braco, may admit of question; but even in the most favourable view, it is thought they could carry nothing more than the lands and teinds expressly adjudged, and the writs and evidents, so far as necessary to support the title to the subjects so adjudged. Then Mungo Graham of Gorthy obtained from the creditors separate dispositions and assignations, under which they conveyed to him the lands and teinds of Braco, as adjudged, with the debts and decrees of adjudication, but nothing more. These dispositions do not even contain a general assignation to writs and evidents according to the style commonly used in a conveyance to a purchaser, the assignation of writs and evidents being limited to the decrees of adjudication and grounds and warrants thereof, so that the obligation of relief against augmentations was never validly transmitted to Mungo Graham, who granted the disposition to General David Graham in 1748. If this view be correct, it is unnecessary to consider the subsequent

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transmissions. For although Mungo Graham, in his disposition to General David Graham, assigned the writs and evidents and all clauses of warrandice and other clauses therein contained, he could not convey to another a right which he had never acquired.

As to the subsequent titles it may be observed, that when General Graham's trustees sold the lands and teinds of Braco to Mr. Masterton in 1800, they granted a disposition to him with an assignation to writs and evidents; but the clause was qualified in such a manner as to show that it was intended only to enable the disponees to complete their title “to the lands and others above disponed.”

Moreover, the disposition and deed of entail by George Drummond in 1847, which is also an essential link in the progress, does not contain an assignation “to the writs and evidents and all obligations of warrandice and other clauses therein contained.” For after conveying the lands and teinds, the deed merely assigns all and sundry contracts, dispositions, and other writs and evidents “of and concerning the lands and other heritages before disponed.” On comparing the cases, it will be found that this clause, though hardly so broad, bears a striking resemblance to the clause which occurred in Graham v. Don, where it was found that the assignation to the writs did not carry a tack of teinds, and could only be used to support the rights actually conveyed.

On these grounds the Lord Ordinary thinks the Pursuer has failed to connect himself with the obligation of relief in the feu contract, and consequently has no title to insist in the claim made by him in this action.

Against this Interlocutor Sir William Drummond Stewart reclaimed to the Inner House, First Division, who ordered printed cases, and appointed them to be laid before the whole Court for their written opinions “on the question whether the Lord Ordinary's Interlocutor should be adhered to.”

On the 15th February 1860, the First Division having obtained the opinions of the Judges of the Second Division and of the Lords Ordinary, they, in conformity with the sentiment of the majority, decided as follows:—

Recal the Interlocutor submitted to review: Find that the Defender (the Duke of Montrose), as superior of the lands and teinds libelled is liable under the obligation libelled to free and relieve the Pursuer as vassal in the lands libelled of all stipend and augmentations of stipend imposed or to be imposed on the

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teinds of the land libelled subsequent to the date of the feu contract: Repel the defences, and so far decern: Find the Defender liable in expenses, &c.

The Duke appealed to the House of Lords; Mr. Rolt and Mr. Clarke appearing for his Grace.

The Solicitor-General ^(a), Mr. Moir, and Mr. Mure were of Counsel for the Respondent.

After an argument on both sides distinguished by extraordinary research and erudition, the Law Peers delivered-the following opinions, which embrace a full consideration of all that was deemed material.