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Scottish Court of Session Decisions >>
Cruikshank v Morison. [1678] Mor 13069 (15 January 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor3113069-015.html Cite as:
[1678] Mor 13069
Feu-duties were found not to be abated by public burdens, but a surplus duty besides the feu-duty was found liable for public burdens.
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The Viscount of Frendraught having disponed, by wadset, to John Watt the Kirk-town of Forgie, to be holden of himself feu for twenty shilling of feu-duty, and for payment of L. 80 of superplus rent yearly, whereupon infeftment followed, and whereunto Bognie hath now right; the Viscount disponed the L. 80 yearly to David Cruikshank, who thereupon pursues a poinding of the ground. The defender alleged, That he ought to have allowance of the public burdens effeiring the to L. 80, which is the third of the rent, seeing public burdens being debita fundi, must burden all that have interest proportionally. The pursuer answered, That, by constant custom, feu-duties are free of all public burdens, and are understood to be given and accepted without all burden; and if it were otherwise, in all pursuits for feu-duties, this would be an obvious defence, which was never proponed nor sustained, and would hinder all payments of feu-duty till count and reckoning; neither were ever feu-duties contained in any valuation of the shires, which is the only ground of public burdens by assessment, nor were they ever found to bear taxation. The defender replied, That all annualrents and pensions, though contained in no valuation, which is only of the lands, do suffer abatement according to their proportion with the rent; and though it hath not come to be controverted, the same reason holds for feu-duteis, especially where they are considerable; 2do, This L. 80 is no feu-duty, but an annualrent; for it is clear, by the wadset-right, that the feu-duty is twenty shilling, with an obligement to pay L. 80 as superplus rent, which being a part of the real right, may be a title for poinding of the ground, but not as a feu-duty.
The Lords found, That there being a several express feu-duty of twenty shilling, that this L. 80 was not a feu-duty, but was liable to an abatement for public burdens.
