Nelson's Trustees v. Tod [1904] ScotLR 41_332 (20 February 1904)

Nelson's Trustees v. Tod [1904] ScotLR 41_332 (20 February 1904)

The superior, by granting a charter of confirmation to Milne's lot and restricting its liability to £12, materially diminished the defender's right of relief against that lot for any overpayment of cumulo feu-duty. Therefore, the superior cannot recover arrears of feu-duty from the defender when her right of relief has been prejudiced by the superior's own actings.

Citation
[1904] ScotLR 41_332
Parties
Pursuer: Nelson's Trustees; Defender: Miss Jean Tod; Defender: Henry Alexander Seaton Pullan; Defender: A. W. Gordon; Defender: North British Railway Company; Defender: J. K. Milne; Defender: Dr Jameson's widow; Defender: Dr Jameson's heir-at-law
Jurisdiction
Scotland
Judgment Date
20 February 1904
Procedural Posture
Action of Poinding of the Ground / Inner House, Second Division, Court of Session, Reclaiming Motion
Outcome
assoilzied (absolvitor)
Legal Topics
Feu Duty, Subinfeudation, Right of Relief, Poinding, Charter of Confirmation, Cumulo Feu Duty
Property Law Conveyancing Scottish Feudal Law Feu Duty Subinfeudation Right of Relief Poinding Charter of Confirmation +1 more

Case Brief

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Parties

Nelson's Trustees

Pursuer

Miss Jean Tod

Defender

Henry Alexander Seaton Pullan

Defender

A. W. Gordon

Defender

North British Railway Company

Defender

J. K. Milne

Defender

Dr Jameson's widow

Defender

Dr Jameson's heir-at-law

Defender

Procedural Posture

Action of Poinding of the Ground / Inner House, Second Division, Court of Session, Reclaiming Motion

Legal Issues

  1. 1 Whether a superior can recover arrears of cumulo feu-duty from a sub-feuar when the superior has granted a charter of confirmation to another sub-feuar, thereby prejudicing the defender's right of relief.
  2. 2 Effect of charter of confirmation on the right of recourse among sub-feuars.

Ratio Decidendi

The superior, by granting a charter of confirmation to Milne's lot and restricting its liability to £12, materially diminished the defender's right of relief against that lot for any overpayment of cumulo feu-duty. Therefore, the superior cannot recover arrears of feu-duty from the defender when her right of relief has been prejudiced by the superior's own actings.

Court Disposition

assoilzied (absolvitor)

Orders

  • Defenders assoilzied from the conclusions of the summons.
  • Interlocutor affirmed; pursuers' reclaiming motion refused.