Tough And Others v. Macdonald And Others [1905] ScotLR 42_339 (17 January 1905)

Tough And Others v. Macdonald And Others [1905] ScotLR 42_339 (17 January 1905)

A casualty became due in 1900, fifteen years after the last payment in 1885, under section 5 of the Conveyancing (Scotland) Act 1874. The defenders, as infeft and entered proprietors at that time, were bound by the clause of relief in the disposition to relieve the pursuers of this casualty, which was due and exigible prior to the pursuers' entry. The defenders' status as security holders did not affect their liability under the clause of relief.

Citation
[1905] ScotLR 42_339
Parties
Pursuers/respondents: Charles Tough and others; Defenders/reclaimers: William Kid Macdonald and Frederick Fotheringham Macdonald as trustees for J. & W. Macdonald
Jurisdiction
Scotland
Judgment Date
17 January 1905
Procedural Posture
Civil Feudal/property Law / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal dismissed; judgment for pursuers affirmed.
Legal Topics
Feu Duty and Casualties, Clause of Relief, Trustees' Liability, Conveyancing (scotland) Act 1874, Section 5, Repayment of Composition/casualty, Interpretation of Feu Charter
Property Law Conveyancing Trusts and Trustees Feu Duty and Casualties Clause of Relief Trustees' Liability Conveyancing (scotland) Act 1874, Section 5 Repayment of Composition/casualty +1 more

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Parties

Charles Tough and others

Pursuers/respondents

William Kid Macdonald and Frederick Fotheringham Macdonald as trustees for J. & W. Macdonald

Defenders/reclaimers

Procedural Posture

Civil Feudal/property Law / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the defenders are bound to relieve the pursuers of a casualty (composition) paid to the superior under a clause of relief in the disposition.
  2. 2 Whether the casualty paid by the pursuers was due and exigible prior to their entry, and thus covered by the clause of relief.
  3. 3 Whether the 15-year or 25-year period under section 5 of the Conveyancing (Scotland) Act 1874 applies to the calculation of when a casualty becomes due.

Ratio Decidendi

A casualty became due in 1900, fifteen years after the last payment in 1885, under section 5 of the Conveyancing (Scotland) Act 1874. The defenders, as infeft and entered proprietors at that time, were bound by the clause of relief in the disposition to relieve the pursuers of this casualty, which was due and exigible prior to the pursuers' entry. The defenders' status as security holders did not affect their liability under the clause of relief.

Court Disposition

Appeal dismissed; judgment for pursuers affirmed.

Orders

  • Defenders ordered to repay to the pursuers the amount of the casualty paid to the superior (£266, 7s.), with interest and expenses.