Lindsay v Bett
| Jurisdiction | Scotland |
| Judgment Date | 13 July 1898 |
| Date | 13 July 1898 |
| Docket Number | No. 184. |
| Court | Court of Session |
Lord Trayner, Lord Moncreiff, Lord Justice-Clerk, Lord Young.
Superior and Vassal—Relief of Public Burdens—Construction of Clause of Relief—Property-tax—39 Geo. III. c. 13—Property and Income-tax Act, 1842 (5 and 6 Vict. c. 35)—Income-tax Act, 1853 (16 and 17 Vict. c. 34), Schedule A.—
In 1803 a proprietor feued out lands, binding himself and his successors in the superiority ‘to pay the teind duties, ministers' stipends, schoolmasters' salaries, cess or land-tax, and all other burthens, duties, services, and casualties whatsoever, public and parochial, as well as all others of every description now due and payable, and that shall hereafter become due and payable or be imposed by any authority whatever for or furth of the said portion of land or teinds thereof for ever, it having been pactioned betwixt us that he was to pay no more than the said feu-duty and duplication when it shall occur.’
In a question raised in 1898, held (1) that the clause covered and gave the vassal relief from those burdens and assessments that affected the land in 1803, including assessments which merely took the place of and were the same in incidence and object as assessment which had ceased to be imposed, but did not cover assessments imposed by supervenient legislation; and (2) (diss. Lord Moncreiff) that the clause did not bind the superior to relieve the vassal of property-tax, that being a personal tax on income derived from the land, and not a tax payable ‘for or furth’ of the lands.
This special case was presented to the Court by (first) Sir Coutts Lindsay of Leuchars, Bart., proprietor of the lands and barony of Leuchars, superior of the lands of Leuchars Lodge, and (second) James Bett, proprietor of Leuchars Lodge, for the decision of a question arising between them as to the relief of public burdens and assessment to which the second party was entitled under the terms of a feu-charter, dated 29th December 1803, comprehending his lands.
The case set forth the following facts:—By feu-charter dated 29th December 1803, and registered in the Books of Council and Session 5th April 1809, the Honourable Robert Lindsay of Leuchars, predecessor of the first party, disponed and in feu-farm let to John Young, W.S., and his heirs and assignees whomsoever, the lands of Leuchars Lodge, consisting of fifty-two Scots acres or thereby, to be holden of the granter, his heirs, and successors, for a feu-duty of £26.
The feu-charter contained this clause,—‘I,’ the granter, ‘bind and oblige myself and my foresaids to pay the teind duties, ministers' stipend, schoolmasters' salaries, cess or land-tax, and all other burthens, duties, services, and casualties whatsoever, public and parochial, as well as all others of every description now due and payable and that shall hereafter become due and payable or be imposed by any authority whatever for or furth of the said portion of land or teinds thereof for ever, it having been pactioned betwixt us that he was to pay no more than the said feu-duty and duplication when it shall occur.’
Mr Young was infeft in the charter by instrument of sasine recorded 16th November 1805. He died in 1825, and was succeeded by his nephew John Learmonth of Dean, who was succeeded by Colonel Learmonth of Dean. Colonel Learmonth sold Leuchars Lodge to R. H. Isdale, the trustee in whose sequestration sold it in 1889 to the second party, Mr Bett.
The case stated:—‘The minister's stipend for the estate of Leuchars, and also the old schoolmaster's salary, cess or land-tax, and all other burdens imposed upon the valued rent of the estate, have been paid in full by the superiors of Leuchars Lodge since 1803, no part of these burdens or of the valued rent itself having been allocated or laid upon that property. With regard to the other burdens and assessments affecting the feu, these have from time to time been the subject of compromises and temporary arrangements between the superior and vassal; but it is admitted by both parties that these do not bar either party from now insisting on his full legal rights.
‘In the circumstances above stated the first party contends that the clause of relief contained in the feu-charter embraces only burdens imposed or which might have been imposed by virtue of laws in existence at the time when the obligation was granted.
‘The second party contends that he is entitled, under the obligation of relief, to repayment of every public and parochial burden imposed upon him in respect of...
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