Scottish Court of Session Decisions

By tack and assedation dated 12th and 20th November 1788 Alexander Jaffray, proprietor of the estate of Kingswells, in the county of Aberdeen, let to William Black, his heirs, assignees, and sub-tenants, the lands of Kingswells. The lease was for sixty years from Whitsunday 1788, and after the expiry of the sixty years, for the lifetime of any person to be nominated within three months before or after the expiry of the sixty years. A rent increasing to £130 after the first forty years was stipulated—“As also besides the aforesaid rents, the said William Black obliges him and his foresaids to free and relieve the said Alexander Jaffray and his above written of and from payment of the feuduty, land tax, teind duties, minister's stipends, and augmentations thereof, if established, and all other public burdens affecting the foresaid lands, and to pay the same annually and regularly as they become due, and report discharges therefor to the said Alexander Jaffray and his above written, except always in regard to the parish kirk, kirk yeard dykes, schoolhouse, and minister's manse, and office houses of Newhills, of all which the said William Black and his foresaids are only to relieve the heritor of the expense and repairs, but in case all or any of the said kirk, kirkyard dykes, schoolhouse, manse, and offices are taken down and rebuilt during the subsistence of this lease, and as often as the same shall happen, it is hereby agreed on that the whole expense of such rebuildings shall be paid by the said Alexander Jaffray and his foresaids.”

In January 1807 Black assigned to Andrew Jopp, advocate in Aberdeen, and his heirs or assignees, his whole interest in the tack.

In 1829 Mr Jopp died, and his testamentary trustees continued the management of the property, and paid to the proprietor Mr Jaffray, or his representatives, the stipulated rent of £130.

The original lease of sixty years came to an end in 1848, and the trustees nominated a Miss Beattie, during whose life the lease was to continue. Miss Beattie was alive at the date of the present actions, and Jopp's trustees continued to be tenants under the lease.

In 1854 Francis Edmond, advocate in Aberdeen, purchased the estate of Kingswells from Mr Jaffray's representatives, burdened with the tack of 1788. Mr Edmond desired to obtain possession of the estate, and in 1855 Jopp's trustees granted a sub-tack of the lands, by which, they let to him the estate “for all the remaining years and crops still to run of the principal tack” from Martinmas 1854.

Mr Edmond bound himself to pay to them during the currency of the sub-tack or the principal tack “the following yearly rents, including the sub-tenants' share of the public burdens, viz., £540, 13s. 2d. for the first crop and year of 1855,” the rents gradually increasing till the

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nineteenth year, if the principal lease should endure so long, after which a rent of £665, 11s. 7d. was to be paid for the subsequent years.

It was also agreed by the sub-tack that Jopp's trustees should “also continue to pay the principal rent of £130, with the poor-rates for the lands as formerly; and shall also pay and free and relieve the proprietor of the feu-duty and other burdens specified in the principal tack.”

Mr Edmond then entered upon possession of the estate, keeping in his own hands the mansion house and home farm, and letting out the rest of the estate upon ordinary agricultural leases.

For the period from 1855 to 1884 Mr Edmond regularly paid to Jopp's trustees the rents stipulated under the sub-lease, and he and his tenants also paid the public burdens due in respect of occupation, consisting chiefly of poor-rates, school rates, registration, and sanitary assessments. He also paid one-half, being the occupier's share, of the assessment for maintenance and repair of roads and bridges imposed under the Aberdeenshire Road Act, which came into force in 1867.

In 1884 he for the first time maintained that he was not liable to make these payments, on the ground that the rents payable under the sub-tack were “including the sub-tenants' share of public burdens.” He maintained that he had thus, through error and inadvertency on the part of those representing him, paid to Jopp's trustees under the first of the two heads above mentioned the sum of £919, 7s. 11d., and under the second (since the local Act came into force in 1867) the sum of £254, 18s. 11d. These sums he claimed right to retain as against the rents falling due after 1883, when he discovered the error.

From the date of the sub-tack in 1855 till 1884, when Mr Edmond stirred the question, Jopp's trustees had paid the whole public burdens exigible from owners, as well as one-half of the assessment under the Aberdeenshire Road Act. They then, however, took up the position that Mr Edmond was liable for all burdens imposed by supervenient statutes subsequent to the date when he acquired the lands, and they claimed repetition of taxes paid by them on the footing previously acted on. These statutes were all passed in or after 1854, and were Acts for purposes of police, registration, militia, and local Acts.

They founded this claim for repetition on the words of the principal tack, which bound them as tenants to free and relieve the landlord of “payment of feu-duty, land tax, teind duties, minister's stipend, and all augmentations thereof, if established, and all other public burdens affecting the foresaid lands,” the clause above quoted. They contended that these words made them liable only for these existing burdens, not for burdens arising from supervenient law, and therefore that Edmond was bound to make payment to them of sums which they had erroneously paid under statutes imposing public burdens on the lands since he became proprietor.

In these circumstances three actions were raised:—

The first was raised by Jopp's trustees for payment of rent under the sub-tack for the years 1884–85–86. Edmond did not dispute the amounts claimed, but based his defence on his construction of the words “including the subtenants' share of public burdens,” and consequent claim to have repayment of occupier's taxes.

The second action was raised by Jopp's trustees for declarator that they, as tenants under the original lease, were not bound to relieve Edmond, as proprietor, of any burdens affecting the lands other than those Specified in the tack as already quoted, and for declarator that he was bound to free and relieve them from all other burdens affecting or that might affect the lands, and in particular from the burdens imposed by statutes passed in and after 1854.

Edmond's defence was mainly based on two grounds, on which no decision was ultimately pronounced in the Inner House. The, first of these was that under the Valuation Act of 1854 Jopp's trustees were themselves, as proprietors of Kingswells, liable for the assessments of which they sought to be relieved by him as proprietor, because by the 6th section of that Act a lessee for more than twenty-one years is to be deemed proprietor in the sense of the Act. The second of these defences was that the statutes described by them as supervenient were really only Acts coming in place of older local Government Acts in existence at the date of the obligation founded on. He also pleaded—“(7) The pursuers having for a period of thirty years voluntarily paid the public burdens in question without error of fact, and being fully advised with reference to their legal rights, are barred from insisting in this action, and separatim, are not now entitled to repayment.”

The third action was raised by Edmond for declarator that the rents payable by him under the sub-tack included the whole public burdens affecting the lands, or that might affect them at any time during the subsistence of the subtack, “so far as the said public burdens are payable by the sub-tenants or occupiers of the said lands and estate,” and in particular that the rent payable by him to them included the subtenants' or occupiers' share of poor rates, school rates, registration, sanitary, road, and cattle disease assessment, and any other assessment to any extent payable by tenants or occupiers of lands. He further asked declarator that in paying his rent under the sub-tack he was entitled to deduct the occupiers' share of public burdens, and that Jopp's trustees were bound to repay him what he had, through error, omitted to deduct since 1855. Decree was asked for the two sums of £919, 7s. 11d. and £254, 18s. 11d. as above mentioned.

The defence was that the pursuer's construction of the words “including the subtenants' share of public burdens” was erroneous, and that the public burdens falling on the occupier were, as well as the rent under the sub-tack, payable by Edmond. It was also pleaded—“(5) The pursuer having for a period of thirty years voluntarily paid the public bur. dens in question without error of fact, and being fully advised with reference to his legal rights, is barred from insisting in this action, and separatim, is not now entitled to repayment of the sums sued for.”

The first and third actions were conjoined.

The Lord Ordinary ( Trayner) in the second action repelled Edmond's seventh plea, and decerned in terms of the first and second conclusions

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of the summons, being those for relief under the principal tack. In regard to a question of fact relating to the church buildings at Newhills the Lord Ordinary allowed a proof.

“ Opinion.—……The defender further maintains that in respect of the 6th section of the Valuation Act 1854 the pursuers are liable in the public burdens in question, subject only to the relief which that section affords. I think this argument is based upon a mistaken view of the section referred to, even if that section has any application in the present case. The Valuation Act is not in any sense a taxing statute; it neither imposes nor exempts from taxation. When by section 6 it declares that in long leases .the tenant shall be deemed to be the ‘proprietor’ for the purposes of that Act, it appears to me to do nothing more than provide means for the convenient imposition and recovery of the burdens which are authorised to be imposed and levied on the basis of the valuation roll. It does not certainly in my opinion lay taxation on one who is deemed to be proprietor apart from the terms of any agreement which may exist between the person deemed proprietor and the actual owner. But has the 6th section of the Valuation Act any application here at all? It applies to leases, ‘the stipulated duration of which is more than twenty-one years from the date of entry under the same.’ The lands in question are held by the defender, not under the tack of 1788, but the sub-tack of 1854, and the latter is not of the ‘stipulated duration’ of twenty-one years. It has as matter of fact endured for more than twenty-one years, but that is not to the purpose. Its stipulated duration was the ‘remaining years and crops still to run of the principal tack,’ and as that depended on the life of a certain person, the defender's lease might have expired at any time. It was not and could not be certain that the lease would last for twenty-one years, and it was not so stipulated. The defender urges the provisions of the Valuation Act in the view that the lands are held under the tack of 1788. But it appears to me that the lease referred to in the Valuation Act is the lease under which the lands taxed are naturally or beneficially held when the tax is imposed, and if that is so, the lease to be considered is the sub-tack of 1854 in the defender's favour. It follows that the lease of 1854 not being of the ‘stipulated duration’ of twenty-one years the Valuation Act does not apply.

“I repel the defender's seventh plea on the authority of Hope v. Lumsdaine, 9 Macph. 865.”

The Lord Ordinary in the conjoined actions repelled the pleas for Jopp's trustees founded .on their construction of the words of the sub-tack, and also their fifth plea, and found and declared in terms of the first and second declaratory conclusions in Edmond's action, subject to the declaration that Jopp's trustees “are not liable, and shall not be bound, to relieve the pursuer Mr Edmond of any share of the sub-tenant's taxes beyond the share of such taxes which effeirs to the amount of the rent as specified in the subtack.”

Opinion.—… The different views maintained by the parties may be thus stated. Mr Edmond contends that under the clause in question he is only bound to pay the rent specified, under deduction of the share of public burdens falling upon the sub-tenant, the share being included in the rent so specified. Jopp's trustees, on the other hand, contend (as I understand their argument) that no such deduction is admissible; that Mr Edmond is bound to pay the specified rent, including, i.e., as well as, the sub-tenant's share of taxes; that in any view the public burdens included in the specified rent can only be those burdens which existed at the date of the tack, and not those imposed by subsequent legislation. On this part of the case I am of opinion that Mr Edmond is right. I entertain no doubt that the specified rent was to include the tenant's share of public burdens. If these were paid by the tenant they formed a deduction from the rent; if the specified rent was paid in full, the landlord was bound to pay the tenant's share of public burdens, because a part of the rent he had received was paid to meet these burdens.

I can give no other meaning or interpretation to the clause I have above quoted. It is probably not so clear whether the public burdens referred to include all public burdens at whatever date imposed, or only public burdens existing at the date of the sub-tack. I am of opinion, however, that on this matter also Mr Edmond is right. If the clause had been an ordinary clause of relief binding Jopp's trustees to relieve the sub-tenant of public burdens, I should have decided that such an obligation covered only existing burdens, and did not extend to those subsequently imposed. But the clause I am dealing with is not of that nature. The parties stipulate in advance for a certain rent to be paid in future years, that rent so stipulated including the tenant's share of public burdens. That in effect was a stipulation that the amount of each year's rent—that is, the nett rent payable to the landlord—should be ascertained when the burdens for that year had been ascertained. In short, the tenant was never to be bound to pay more than the amount of the specified rent, whether he paid it as rents or public burdens. At the same time I think the share of the sub-tenant's burdens which Jopp's trustees are bound to bear is only such a share as effeirs to the rent specified in the sub-tack, and not to any greater rent which Mr Edmond may be getting from his sub-tenant. If it were otherwise, then Mr Edmond by increasing the assessable rent might seriously reduce his own obligations to Jopp's trustees, and reduce also the benefit conferred on them in name of rent under the sub-tack. I cannot suppose that Jopp's trustees ever intended to leave the amount of their liability practically in Mr Edmond's hands, nor do I think they have done so.”

Both parties, having obtained leave, reclaimed.

The arguments on both sides appear from the statement given above. Neither party maintained their plea as to the practice since the subtack was entered into.

At advising—