M'Elroy v. Duke of Argyll [1902] ScotLR 39_666 (19 June 1902)

M'Elroy v. Duke of Argyll [1902] ScotLR 39_666 (19 June 1902)

The clause of redemption in the feu-contract, allowing the superior to reacquire the property at a price not exceeding the original cost, is legal and effectual. It is not a prohibited restriction on alienation under the Tenures Abolition Act 1746, section 10, nor is it invalid as a clause of preemption. The clause runs with the land as a real burden and binds singular successors.

Citation
[1902] ScotLR 39_666
Parties
Pursuers: Mary M'Elroy, Annie M'Elroy, and Agnes Shaw M'Elroy; Defender: Duke of Argyll
Jurisdiction
Scotland
Judgment Date
19 June 1902
Procedural Posture
Action of Declarator and Interdict / Inner House Appeal (reclaiming Motion) From Lord Ordinary
Outcome
Appeal dismissed; judgment for defender affirmed.
Legal Topics
Feu Contracts, Clause of Redemption, Clause of Preemption, Tenures Abolition Act 1746, Real Burdens, Alienation of Land
Property Law Feudal Law Feu Contracts Clause of Redemption Clause of Preemption Tenures Abolition Act 1746 Real Burdens Alienation of Land

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Parties

Mary M'Elroy, Annie M'Elroy, and Agnes Shaw M'Elroy

Pursuers

Duke of Argyll

Defender

Procedural Posture

Action of Declarator and Interdict / Inner House Appeal (reclaiming Motion) From Lord Ordinary

Legal Issues

  1. 1 Whether a clause of redemption in a feu-contract, allowing the superior to reacquire the property at a fixed maximum price, is legal and effectual under the Tenures Abolition Act 1746, section 10.
  2. 2 Whether such a clause is equivalent to a prohibited clause of preemption or restriction on alienation.

Ratio Decidendi

The clause of redemption in the feu-contract, allowing the superior to reacquire the property at a price not exceeding the original cost, is legal and effectual. It is not a prohibited restriction on alienation under the Tenures Abolition Act 1746, section 10, nor is it invalid as a clause of preemption. The clause runs with the land as a real burden and binds singular successors.

Court Disposition

Appeal dismissed; judgment for defender affirmed.

Orders

  • Defender assoilzied from the conclusions of the action.
  • Pursuers to pay expenses.