Christie's Trustees v. M'Dougall [1905] ScotLR 42_625 (08 June 1905)

Christie's Trustees v. M'Dougall [1905] ScotLR 42_625 (08 June 1905)

The exemption from payment of casualty in the feu-charter applies only to first purchasers from the original vassal, not from his heirs. The defender, as purchaser from the heirs, is liable for the full cumulo casualty. The statutory action is competent as the fee was empty and the implied entry under the Conveyancing (Scotland) Act 1874 does not bar the superior's rights. The defender retains a right of relief against co-vassals in the same portion of the property.

Citation
[1905] ScotLR 42_625
Parties
Pursuer: Christie's Trustees; Defender: Patrick M'Dougall
Jurisdiction
Scotland
Judgment Date
08 June 1905
Procedural Posture
Action of Declarator and for Payment of Casualty / Inner House, First Division, Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor
Outcome
Reclaiming motion refused; interlocutor of Lord Ordinary affirmed.
Legal Topics
Superior and Vassal Relationship, Entry and Casualty, Division of Superiority, Right of Recourse Among Vassals, Implied Entry Under Conveyancing (scotland) Act 1874, Competency of Statutory Action, Interpretation of Feu Charter Clauses
Property Law Feudal Law Conveyancing Superior and Vassal Relationship Entry and Casualty Division of Superiority Right of Recourse Among Vassals Implied Entry Under Conveyancing (scotland) Act 1874 +2 more

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Parties

Christie's Trustees

Pursuer

Patrick M'Dougall

Defender

Procedural Posture

Action of Declarator and for Payment of Casualty / Inner House, First Division, Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Does the exemption from payment of casualty in the feu-charter apply to a purchaser from the original vassal's heirs?
  2. 2 Is the defender liable for the cumulo casualty after division of superiority and allocation of feu-duty?
  3. 3 Is the statutory action of declarator and for payment of casualty competent where the vassal last entered is dead and successors are only impliedly entered?

Ratio Decidendi

The exemption from payment of casualty in the feu-charter applies only to first purchasers from the original vassal, not from his heirs. The defender, as purchaser from the heirs, is liable for the full cumulo casualty. The statutory action is competent as the fee was empty and the implied entry under the Conveyancing (Scotland) Act 1874 does not bar the superior's rights. The defender retains a right of relief against co-vassals in the same portion of the property.

Court Disposition

Reclaiming motion refused; interlocutor of Lord Ordinary affirmed.

Orders

  • Decree for payment of £50, 4s. casualty to pursuers.
  • Declaration that full rents, maills, and duties of the property belong to pursuers until payment of casualty and expenses.