Duncan v Church of Scotland General Trustees

JurisdictionScotland
CourtCourt of Session (Inner House - Second Division)
Judgment Date20 December 1940
Date20 December 1940
Docket NumberNo. 14

2ND DIVISION.

No. 14
Duncan
and
Church of Scotland General Trustees

Superior and Vassal—Heritable property—Tenement property—Maintenance of roof—Feu-disposition of top flat—Allocation of part of cost of maintenance on vassal—Whether obligation thereby imposed on superior to bear remaining cost—Whether such obligation transmissible against singular successors of superior.

The proprietor of certain lands agreed with a builder to feu to him a part of the lands, and thereafter the builder erected thereon a double tenement and sold the rough walls of the uppermost flats to two wrights, who finished the flats and sold them to a purchaser. The builder had made no payment to, nor had the obtained a title from, the proprietor, and the latter, with the builder and the wrights, in 1824 granted a feu-disposition of the flats to the purchaser, the proprietor obtaining as consideration an annual feu-duty and the others payments in cash. A clause in the disposition, which dealt with the expense of the upkeep and repair of the tenement, provided that the purchaser should bear one-fourth of the expense of keeping in repair and upholding the roof. Feu-dispositions of the other parts of the tenement (one of which had been granted prior to the disposition above referred to) all, with one exception, allocated a portion of the cost of the upkeep of the roof upon the subjects feued. In 1934 the local authority made an order for the repair of the roof, and the proprietor of one of the top flats, which were now separately owned, got an estimate of the cost of the repairs applicable to his section of the building. One of the proprietors, on whose property no allocation had been made, refused to consent to the estimate, and the proprietor who had got the estimate paid the greater part of the cost. Thereafter he brought an action against the successors in the superiority, in which he contended that under the terms of the original feu-disposition they were bound to relieve him of the sum he had expended in excess of one-fourth part of the cost of the repairs, in so far as such excess could not be recovered from the other proprietors.

The Court (dub. Lord Mackay) dismissed the action,holding (1) that the clause in question did not relieve the vassal of the burden of maintenance imposed on him by the common law, but merely expressed the superior's intention to allocate the expense among the several feuars; but (2), on the assumption that the superior had incurred an obligation to allocate the cost of maintenance, that obligation was a personal one which did not transmit against successors in the superiority when the whole feu right sof the subjects had been granted.

William Duncan, proprietor of the southmost house on the top flat of a double tenement at 3 Howard place, Edinburgh, brought an action in the Sheriff Court at Edinburgh against the General Trustees of the Church of Scotland, his superiors, for the sum of £23, 19s. 3d., a figure based on the view that he was liable only for one-fourth of the expense incurred in executing repairs to the roof under orders from the local authority.

The facts of the case as set forth on record were as follows. The facts are also narrated by the Lord Justice-Clerk in his opinion.

At a date some time prior to 11th June 1824 Alexander Henderson, proprietor of the lands of Warriston, near Edinburgh, entered into a bargain with Thomas Mair, mason and builder, by which the former was to grant to the latter a feu of a piece of ground forming part of the lands of Warriston. On part of this ground Mair proceeded to erect a double tenement of houses, and he sold to John Howison and Robert Reid, wrights in Edinburgh, the rough walls of the uppermost flats, and sold them to George Hogarth. Mair had not obtained a title to the ground from Henderson and had made no payment to him, and on 11the June 1824 Henderson and had made no payment to him, and on 11the June 1824 Henderson, along with Mair, Howison and Reid, disponed1 the uppermost flats to Hogarth, Henderson obtaining a feu-duty, while Mair, Howison and Reid got payments in cash. The disposition provided for the proportion which Hogarth was to pay of the expense of the upkeep of the various parts of the tenement. As regarded the roof he was made liable for "one-fourth of the expense of keeping in repair and upholding the said roof (including the lead work, roans and spouts or pipes for conducting away the roof water)." Feus of the other parts of the tenement were granted by Henderson or his daughters who succeeded him (the feu of one part had been already granted before the disposition to Hogarth), and in every case except one, a feu of the sunk and street flats of the south part of the tenement granted by the daughters in 1835, an allocation was made of the expense of the upkeep of the roof. In 1938 the City Engineer of Edinburgh served notices upon the owners of the double tenement calling upon them to make certain repairs to the roof of the tenement, and the pursuer obtained an estimate for the work on the roof of the south half of the tenement. The owner of the sunk and street flats (the subjects upon which no allocation had been made) refused to consent to the estimate, and the expense of the operations, except for one-fourth paid by the owner of one of the other flats, was defrayed by the pursuer. In 1901 the General Trustees

of the Church of Scotland had become the superiors of the subjects.

The pursuer averred "(Cond. 2) … the said provision [limiting the liability of the disponee for the expenses of upkeep of the roof to one-fourth] … implied that the defenders would be responsible for the remaining three-fourths of the expense … The defenders are accordingly bound to relieve the pursuer of the expense … in so far as his liability for such expense in excess of one-fourth share thereof cannot be recovered by him from the proprietors of the other houses in the said tenement. The said obligation transmitted against the singular successors of the said Alexander Henderson and has transmitted against the defenders.…"

The pursuer pleaded inter alia:—"(2) The defenders on a sound construction of the clauses in the said disposition are bound to relieve the pursuer of the sum paid by him for the repair of the said roof in excess of one-fourth share thereof in so far as such excess cannot be recovered by him from the proprietors of the other houses in the tenement."

The defenders pleaded inter alia:—"(2) The pursuer's averments being irrelevant and insufficient in law to warrant decree being granted as craved the action should be dismissed. (4) In respect that the disposition [of 11the June 1824] did not impose either expressly or impliedly any liability on the superiors of the property for three-fourths of the expense of upholding the roof the defenders should be assoilzied. (5) Esto that the said Alexander Henderson was liable for three-fourths of the said expense in virtue of the said disposition, the defenders should be assoilzied in respect that the said obligation (a) did not transmit against singular successors of the said Alexander Henderson and (b) in any event did not transmit against the defenders."

On 9th July 1940 the Sheriff-substitute (J. Macdonald) sustained the second plea in law for the defenders, and dismissed the action.

The pursuer appealed to the Sheriff (Brown), who, on 17th September 1940 sustained the appeal, and decerned against the defenders as craved.

The defenders, having obtained leave from the Sheriff, appealed to the Court of Session, and the case was heard before the Second Division (without Lord Wark) on 7the 8th and 12the December 1940.

At advising on 20th December 1940,—

LORD JUSTICE-CLERK (Aitchison).—This is an action brought by a vassal against his superiors of certain heritable subjects consisting of the top flat of an urban tenement in Edinburgh. The action concludes for payment of £23, 19s. 3d., being part of an account incurred and paid by the vassal for necessary repairs to the roof of his property on the requisition of the public authority. The action is laid as an action of relief (plea 2) under the original feu-disposition of the subjects granted in 1824. Leaving aside the form of the action, the substance of the pursuer's claim is that, on a true construction of the feu-disposition, the superiors, who are now the General Trustees of the Church of Scotland as singular successors, are liable to the pursuer as vassal in the expense of the repair and maintenance of the roof to the extent of three-quarters thereof, the superiors' liability being, it is maintained, by necessary implication a real condition of the feudal grant. The Sheriff-substitute held the claim to be irrelevant and dismissed the action. The Sheriff differed and granted decree. By leave the present appeal is taken.

The question turns upon the true construction of the original title. Before examining its terms it will be convenient to narrate the following facts upon which the parties are agreed. In 1824 the heritable proprietor of the subjects was Alexander Henderson, banker, Edinburgh. He was heritable proprietor of the lands of Warriston including the whole tenement to which the case relates. The tenement consisted of two parts, a north and a south. Feus were granted as follows:—(1) In May 1824 Henderson granted a feu of the sunk and street flats of the north part of the tenement to certain marriage-contract trustees. (2) In June 1824 he granted to the pursuer's author, one George Hogarth, a feu of the upper flat of both parts of the tenement. (3) In 1835 Henderson's daughters granted a feu to one Paul of the sunk and street flats of the south part of the tenement. (4) In August 1845 Henderson's daughters granted a feu of the middle flat of both the north and the south parts, on which date therefore the feuing of the tenement was complete. In each of the feu-dispositions, other than No. 3, there was an allocation of...

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1 cases
  • Duncan Smith & MacLaren. v Heatly
    • United Kingdom
    • High Court of Justiciary
    • 7 Marzo 1952
    ...Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926 (16 and 17 Geo. V, cap. lxv). 9 1925 S. C. (H. L.) 45. 10 1941 S. C. 145. 11 Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926 (16 and 17 Geo. V, cap. 12 1925 S. C. (H. L.) 45. 13 Gellatl......
1 books & journal articles
  • Transmissibility of Lease Conditions in Scots Law – A Doctrinal-Historical Analysis
    • United Kingdom
    • Edinburgh Law Review Nbr. , September 2015
    • 1 Septiembre 2015
    ...property and which is unnatural as a personal obligation divorced from heritable property” (Duncan v Church of Scotland General Trustees 1941 SC 145 per Lord Justice-Clerk at 156). even in the feudal context in which it had been most prevalent,100100See n 87, above. See also Lord Trayner, L......

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