Scottish Court of Session Decisions

Subject_1 SUPERIOR AND VASSAL.
Subject_2 SECT. XXIV.

Description of the Vassal's Title.

Johnston and Others
v.
The Magistrates of Canongate

Date: 30 May 1804
Case No. No. 103.

A piece of ground feued for building a church, with a provision in the charter, that it shall revert to the superior if at any time it be applied to secular purposes, may be sold, when it becomes necessary to have a larger church than can be built on the area, provided the price be applied to that purpose.

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The village of North Leith originally formed a part of the parish of Holyrood-house; but when the number of inhabitants increased, the inconvenience of the distance from the parish-church induced them to establish a separate place of worship. With this view, in 1569, the inhabitants obtained a charter from the Magistrates of Canongate, granting to them in feu the chapel of St. Ninian's, with its appendages, situtated on the north side of the water of Leith. This charter proceeded on the narrative of the ardent zeal which the Magistrates of Canongate had “for the preservation of due order among our beloved neighbours, the inhabitants of the town of Lieth, on both sides of the water thereof, within our parish of Holycross, and considering that, by our office, we are bound, as far as it lies in our power, to provide for them as members of our church;” and after disponing in fee and heritage for ever the chapel of St. Ninian's, for payment of a small annual feu-duty, if required, contained the following clause: “Providing, nevertheless, that if anyof the said inhabitants of said town, our feuers aforesaid, endeavour to apply the said chapels, lands, annual-rents, and duties thereof, to any particular uses, so that the same cannot be converted unto the uses above-written, in that case, the said chapels, houses, annualrents, &c. shall ipso facto return to us and our successors; and moreover, the set of our present feu shall be of no srength, efficacy, or effect, as is provided in our charter of donation thereof allenarly,” &c.

Soon after the charter was obtained, the inhabitants of North Leith erected, on the site of the chapel of St. Ninian's, a church, for the accommodation of the village, which, in 1606, was, by act of Parliament, erected into a distinct parish, independent of Holyroodhouse.

This church has been used ever since, and was repaired, from time to time, at the expense of the parish of North Leith, who exercised the right of patronage. The Magistrates of Canongate never demanded the feu-duty payable by their charter, and had no connection with the church, except being allowed the occasional use of a seat, and of the session-house for holding an annual court.

On account of the great increase of inhabitants, the church of North Leith became deficient in point of accommodation; and the site of the church, besides other inconveniences, was too small to contain a church of sufficient dimensions. Accordingly, the inhabitants purchased a piece of ground; and as the ground on which the church stood was valuable, on account of its vicinity to the harbour, it was proposed to sell it, and employ the price in building a new church of sufficient dimensions. But while this scheme was in agitation, intimation was made by the Magistrates of Canongate, that if the church was sold, and converted to secular purposes, they would consider it as having reverted to them by the charter. An action of declarator was brought in the name of the minister, kirk-session, and other inhabitants of North Leith, against the Magistrates of Canongate, concluding, that they were entitled to sell the area of the present church, to enable them to build a new one of proper dimensions, transferring to the title deeds of the new area the same conditions which were contained in the present charter, and that the Magistrates should be bound to grant a new charter, without a clause of return, for payment of the present feu-duty, with double feu-duty at the entry of heirs and singular successors.

The Lord Ordinary made great avisandum; and the pursuers

Pleaded: Restrictive clauses are unfavourable in law, and therefore to be strictly interpreted. Accordingly, a clause of pre-emption, or clause of return, inserted in a charter, after the failure of a certain series of heirs, does not prevent the grantee from alienating the subject; Stirling against Johnston, No. 70. p. 2342. voce Clause; Johnstone against Marquis of Annandale, No. 39. p. 4356. voce Fiar, Absolute, Limited; Duke of Hamilton against Douglas, No. 40. p. 4358. Ibidem. Even when the clause of restriction relates to the use of the subject, if, by any possible construction it can be evaded, it is construed to the advantage of the proprietor, though contrary to the evident meaning of the expression; Governors of Heriot's Hospital against Fergusson, No. 33. p. 12817. voce Property.

But this rule of interpretation applies much more forcibly, when a subject has been conveyed with a special object in view, when the grantee has been merely restrained from doing any thing by which that object may be defeated, and when he, in fact, only proposes to do what is evidently calculated more completely to fulfil the intention of the granter. By every fair and reasonable construction of the clause of return, the proposal of selling the present church, for the purpose of building another more commodious, is no departure from the purposes of the grant, and consequently can give no room for its operation. On the contrary, the judaical interpretation which the Magistrates put upon the charter would defeat the very object of it. They can have no reasonable interest in opposing the measure, since they are to retain the same privileges with respect to the new church that they formerly enjoyed.

Answered: By the principles of feudal law, every grant from a superior to a vassal is presumed gratuitous. But there is no need for presumptions in the present case, as the narrative of the charter shows that it was a donation; and it is stated so expressly in the clause of return. The Magistrates, therefore, as feudal superiors, cannot be compelled to renew the investiture in different terms, or under different conditions, from those expressed in the original grant. As that grant was to successors only, for special purposes, and not to assignees, no part of the premises can be sold without the consent of the superior.

The object of the pursuers is to convert the subject of the original grant in some measure to their own private emolument, since they mean to lay out the difference between the price of the old and new area in building a manse and offices for the clergyman, which the inhabitants are bound to do. The Magistrates were willing to accept of a small increase of feu-duty from the purchaser of the old area; in consideration of which, they would leave out the clause of return in the charter to be granted by them to the purchaser. As administrators of the burgh, it is reasonable that some share of the profit should be communicated to its funds, instead of being wholly appropriated by the inhabitants of North Leith.

The conclusions of the pursuers' summons were inept; for suppose they are found entitled to sell, that decree will not render the clause of return effectual, or prevent the defenders from evicting the property, whenever it is applied to any secular use.

The Lords had no difficulty in decerning conformably to the conclusions of the declarator, being satisfied that the proposed plan was not adverse to the intentions of the original grant.

Lord Ordinary, Bannatyne. Act. Moncrieff. Agent, Jo. Mowbray, W. S. Alt. Cranstoun. Agent, Jo. Macritchie. Clerk, Home. Fac. Coll. No. 165. p. 372.