Paton v. Brebner and another [1819] UKHL 1_Bligh_42

UKHL
Paton v. Brebner and another
[1819] UKHL 1_Bligh_42
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS OR WRITS OF ERROR, And decided during the Session , 1819. 59 Geo . III.SCOTLAND.APPEAL FROM THE COURT OF SESSION (FIRST DIVISION).

No. 2

Paton Appellant v. Brebner and another Respondents

1819 .purchase of feu by lessee — merger of lease .A lessee becoming purchaser takes upon himself the covenants or warranties of the lessor.a. A. andb. B. having a lease for years of lands “with the privilege of taking water from an adjoining river, for the purpose of driving machinery, &c.” which lease and privilege were warranted to the lessees, they enter into a contract with the lessor, in which it is expressed, “that the lessor agrees to grant a feu-charter of the lands under lease, with all the right members, privileges, and appurtenances thereunto belonging, or which ever have been competent to the heritor of the said lands to claim and enjoy. It being the intention of the parties thereto, that all rights and privileges of or belonging to the said lands formerly leased, should be feudally conveyed by the lessor to the lessees, &c. It was insisted by the lessees, that under this contract they were intitled to have a feu-charter executed according to the words of the lease. But the House of Lords reversing the judgment of the Court of Session decided, that the feu-charter must follow the words of the contract; and Eldon, Chancellor, in moving the judgment, intimated his opinion that the privilege of taking water from the river, was not included in the words , or legal import of the contract.The Appellant in this case was proprietor of an estate called Grandhome, on the northern bank of the river Don, near the city of Aberdeen. The Respondents were at first lessees, and afterwards pending the leases, purchasers under feu-contracts of lands forming part of the estate of Grandhome, with certain rights and privileges

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The question between the parties to the appeal was, whether the feu-contracts (or agreements for sale and purchase) were to be carried into execution by inserting in the feu-charter (or deed of conveyance) the words respecting privileges, as expressed in the leases, or those which appeared in the feu-contracts.On the 20th of February, * 1792, articles of lease, between John Paton, (the Appellant) on the one part, and Messrs. Brebner, and Hadden, (the Respondents) and Thomas Leys, (a partner of the Respondents, since deceased,) on the other part, were drawn up and signed by the parties.By the first article, “the said John Paton sets and lets in tack to the saids Alexander Brebner, James Hadden, and Thomas Leys, and to their heirs and assignees, for the space of 99 years, from and after the term of Whitsunday in the year 1793, for payment of the yearly rent, and upon the other conditions underwritten, all and whole the haugh of Mains of Grandhome, consisting of, &c.”By the second article it is agreed, “that the said tacksmen and their foresaids shall have the privilege and liberty of taking in water from the river Don for the purpose of driving machinery and other uses , and of cutting canals through

Footnote

* The instruments out of which the question arises, are long and numerous. The material parts of them, forming the basis of the judgment given in the House of Lords, are extracted and inserted in the text.

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By the third article, it is agreed between the parties, “that the said tacksmen shall have liberty at any time betwixt the date hereof and the said term of Whitsunday 1793 years, to cut a canal through the said grounds for the purpose of introducing water, upon allowing to the present tenant the amount of whatever damage he shall be found to have sustained thereby, as the same shall be ascertained by two arbiters, to be mutually chosen, with liberty to them, if they should happen to differ, to choose an oversman for finally determining the same; and farther, if

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By the fourth article, “the saids Alexander Brebner, James Hadden, and Thomas Leys, agreed, &c. to pay to the said John Paton, &c. for the lands set to them as above, at the rate of 3 l. sterling for each acre thereof, but with a deduction therefrom yearly of 7 l. 17 s. 6 d. sterling, on account of the barren ground comprehended therein; and also with a deduction from said rent of 1 l. 11 s. 6 d. sterling yearly, for each acre of the foresaid pieces of ground called the Devil's Hillock and the Lowing-ill Hillock, the said sum of 3 l. per acre, to be in full for rent, multure, and every thing else exigible by the heritor, and to be payable at Martinmas and Whitsunday, after shearing each crop, by equal portions, with interest thereafter till paid, and a fifth part more of liquidate penalty in case of faillie; and also, they became bound to build, upon their own expence, a sufficient march-dike of stones, as far as the head or west end of Downie's Hillock, and to uphold the same during this lease.”By the fifth article, it is agreed, “that the said tacksmen shall be obliged to erect and make out

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By the sixth article, it is agreed, “that the said tacksmen shall be obliged to carry all the grindable grain which may grow on the lands so set to them, and which they may have occasion to grind, to the mill of Grandhome, and to pay the miller for his trouble in grinding the same the one-and-fortieth peck ; and if the mill is frequented by the said tenants, they are to join in supporting the same and the dam-dike, as the other tenants, in proportion to their ground.By the seventh article, it is agreed, “that the tenants of Mains of Grandhome and Denstown, and the heritor for his own use, shall have the use of the road through the haugh of Rappahanna for all purposes whatsoever; but that the other tenants shall only have right to use it as a foot-road; but if the present road shall interfere with their operations, the said tacksmen shall have full liberty to turn the said road to the lower part of the haugh.”

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By the eighth article, it is provided that, “if, in using any of the aforesaid quarries, the said tacksmen shall happen to go into inclosures or improved grounds, that they shall be obliged to make good to those concerned any damage which may be occasioned thereby.”By the ninth article, “the said John Paton reserves to himself and his foresaids a right to allow stones to be carried to the cruives along the haugh of Rappahanna as fomerly; and if the heritors of the cruives shall have occasion to build more houses for the accommodation of their fishings, the said John Paton thereby reserves for that purpose, from the lands thereby set, a space of ground equal to what they at present occupy, adjoining thereto, and that without any diminution from the rent above-mentioned; and the heritors of the cruives are to have liberty of laying down stones as formerly along the river, on their making an acknowledgment therefore to the said tacksmen, as they now do to the present tenant.”Under a provision contained in the preceding articles, and in pursuance of the contract, a lease was executed, bearing date the 31st of March, 1797, by which “it is contracted, finally ended, and mutually covenanted and agreed upon, between John Paton, Esq. of Grandhome, heritable proprietor of the lands after-mentioned, on the one part, and Alexander Brebner, James Hadden, and Thomas Leys, all merchants in Aberdeen, on the other part, in manner and to the effect following: That is to say, Whereas

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By an agreement entered into between the Appellant and Respondents, dated 3d and 9th February, 1810, reciting the effect of the leases theretofore made, and still subsisting, it is agreed, “That the said John Paton shall forthwith establish, and make out a good and satisfactory title in his own person, as heritable proprietor of the lands therein-before specified; and, moreover, upon the request of the said Alexander Brebner and James Hadden, (Thomas Leys being dead), in consideration of the purchase-money, and subject to the annual feu-duty therein after to be mentioned, by sufficient and proper conveyances in the law, but at the cost and charge of the said Alexander Brebner and James Hadden, he, the said John Paton, shall and will grant one or more feu-charters to and in favour of the said Alexander Brebner

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By a tack, dated the 26th of October, 1797, it is contracted, ended, and agreed betwixt John Paton of Grandhome, heritable proprietor of the lands, and others under-written, on the one part, and Alexander Brebner, Thomas Leys, and James Hadden, merchants in Aberdeen, on the other part, in manner following, that is to say, whereas the said Alexander Brebner, Thomas Leys, and James Hadden, have fixed on the grounds hereinafter described, as affording an eligible situation for the erection of machinery fitted for manufacturing purposes, and have in that view agreed with the said John Paton for the lease under-written, and for the liberty and privilege of taking water from the river Don by a canal or cut for serving such machinery , and for other purposes connected with any manufactory or manufactories to be

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By an instrument, dated the 19th and 23d of May, 1810, * “it is contracted between John Paton, &c. and A. Brebner, &c. that John Paton, in consideration of the feu-duties, sums of money, and other prestations after specified, hath sold, and in feu-farm and heritage disponed to the said Alexander Brebner and James Hadden, equally between them, and their heirs and assignees whomsoever, all and whole those parts of the lands and estate of Grandhome called Persleys, with the whole other possessions, waterfalls, quarries, privileges, and pertinents of the same, as at present enjoyed by and under lease or

Footnote

* In extracting the above instruments, it should have been noticed that the leases have respectively clauses of absolute warrandice.

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After the signing of the agreements, the Respondents paid 5,500 l. to the Appellant, on account of the purchase money, for which the agent of the Appellant gave a receipt in the following terms:
“For a feu-right to be granted in their favor by Mr. Paton, on the lands of, &c. in the terms of two agreements, entered into between them dated, &c.”
The Respondents, from the respective dates of the leases until the signing of the contracts of sale, had been in possession of the premises as lessees. They had erected machinery at a great cost, and had exercised the light of drawing water from the river, with the other rights granted under the leases. Shortly after the signature of the contracts, the Respondents called upon the Appellant to fulfil the contracts by executing a feu-charter. Thereupon

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“That John Paton, &c. in consideration, &c. in feu-farm disposes, &c. to A. Brebner, &c. all the lands of Grandhome, (the lands in the first agreement) &c. together with the privilege and liberty of taking in water from the river Don , for the purpose of driving machinery and other uses, and of cutting canals, &c. As also that piece of ground, &c. (under lease to Milne, Cruden, and Co. being the lands in the second agreement) together with the privilege, &c. of taking off water from the river Don, and digging &c. a canal, &c. and conveying water from the said river, &c. for serving machinery,” &c.
After a long negotiation carried on to adjust these differences, a feu-charter was drawn up by the Appellant's agent, containing the clauses contended for by the Respondents. The only matter in difference then remaining to be settled, as the Respondents represented, was, whether a clause of irritancy ob non solutum canonem , should be inserted in the charter, the Appellant claiming

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The Appellant having finally refused to execute a feu-charter, containing the clauses proposed by the Respondents, an action for implement of the agreements was commenced in the Court of Session. The summons (after setting forth the agreements, the draft of a feu-charter, the negotiations, the single point to which the differences were reduced, the case reciting that fact, signed by the Appellant, and the award) concludes by praying, that “the said John Paton should be decerned and ordained, by decree of the Lords

Footnote

* By the pleadings in the court below, and in the printed case presented to the House of Lords, it was alleged by the respondent, that the Appellant had finally settled and approved the feu-charter, with the exception stated in the text, and had given up his objection to execute the charter with a clause, giving the right to take water from the Don. This allegation was contradicted by the Appellant, who averred that he had annexed to the case submitted to Mr. Cathcart, a writing, or letter, in which he desired that the question as to the privilege of taking water from the Don, might be considered and decided by the arbitrator . But this collateral question as to the case submitted to arbitration, and the effect of the award, does not seem to have been much discussed in the court below, nor to have been considered as a material ingredient in the formation of the judgment of the Lord Ordinary, or the Court of Session. It was necessary to state in the text the facts as they appear upon the pleading in the court below, because the Lord Chancellor, in moving the judgment in the House of Lords, adverts to this branch of the matters in dispute between the parties.

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The defences to the action consisted of three points:1st, It is admitted by the defender that he entered into the obligations contained in the two agreements; but that these agreements contain no obligation whatever upon the defender to admit or introduce into the feu-charter the clauses contained in the draft of the feu-charter produced, whereby it is proposed to bind the defender specially to grant to the pursuers power and liberty to take water, from the river Don, for the purpose of serving the machineries and manufactories already established and to be established by them, and also to grant absolute warrandice of these privileges and liberties of taking the water, because he might expose himself to future actions of damages at their instance, to a far greater extent than the whole price he was to receive for the feus in question. That

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2dly, The special conclusion of the summons being, that the defender “should be decerned to grant feu-charters, not in terms of the feu-agreements previously entered into, but in terms of a scroll or draft of a feu-charter produced and founded on by the pursuers,” this conclusion of the action is utterly untenable. His intention in the feu-agreements having been to put the pursuers precisely in his own place, as proprietor of the lands to be feued, with all the privileges belonging to such right of property; but more than this he never agreed, nor can be bound in law to grant.3dly, The defender never, at any time, agreed to dispone or convey to the pursuers, the liberty and privilege of taking water at pleasure from the Don, which, as an individual heritor on the banks of that river, he had perhaps no right to grant, and which it would be most imprudent and dangerous in him to warrant to the pursuers. The defender never attested, or meant to attest, that part of the case laid before Mr. Cathcart, which stated that all parties were agreed upon the whole clauses contained in the proposed scroll, or draft, of a feu-charter, except the clause of conventional irritancy ob non solutum canonem; on the contrary,

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The action was brought to hearing before Lord Alloway, as Ordinary, on the 9th of February, 1814, when his Lordship pronounced the following interlocutor:
“The Lord Ordinary, having heard parties' procurators on the libel, and grounds of defence, appoints the defender, within fourteen days, to prepare and lodge in the process the draught of a feu-charter, containing all the clauses and obligations which he considers himself bound and is willing to grant to the pursuers, in reference to the whole subjects in question.”
2d June, 1814. First interlocutor appealed from.After this, Mr. Paton put into process two separate draughts of feu-charters, or contracts, the one applicable to the subjects contained in the first feu-agreement, and the other relative to the subjects in the second agreement. The Respondents were allowed to be heard in objection to these proposed deeds, and the Lord Ordinary afterwards pronounced the following interlocutor:agreements betwixt the parties, and the draft of the feu-contracts produced in implement of these agreements, the minute given in by the pursuers, as containing objections to the feu-contracts produced by the defender, and answers thereto, together with the whole process, —finds, that two specific agreements, &c. finds, that the first feu-contract should proceed narrativé narrativé , by reciting verbatim the whole of the agreement entered into betwixt the pursuers and defender upon the 3d and 9th February, 1810, and state, that in implement of that agreement, the present feu-contract has been entered into betwixt the parties: finds, that the feu-contract should then contain an exact description of the subjects contained in the leases specially referred to in the agreement; and if the parties are agreed that a more minute and particular description of any part of the subjects should be inserted, it may, with their mutual consent, be inserted in this part of the deed; but if they do not agree, then the very words used in the description of the subjects in the leases should be adopted, and the feu-contract shall dispone and confer all the rights and privileges contained in the leases as to those subjects contained in the leases; and with regard to the additional space of land contained in the agreement, but not included in the former leases therein referred to, finds, that this land must be conveyed, with all the rights, members, privileges, and appurtenances thereunto belonging, or which ever have been competent to the heritors of the said lands to claim and enjoy: finds, that the second feu-contract * shall also recite the precise terms of the second agreement entered into by the parties upon the 19th and 23d May, 1810, and that it shall in like manner narrate the whole of that agreement; and also, that the description of the subjects feued shall contain the whole subjects under lease to Milne, Cruden, and Company; and that with regard to the additional subjects thereby feued, they shall be conveyed in terms of the agreement, together with all the rights, privileges, and appurtenances thereto belonging, or which ever have been competent to the heritors of the said lands to claim and enjoy: finds, that the defender is not entitled to insert any reservation with, regard to the lands feued, as to his right of cutting and quarrying stones: finds, that the clause introduced by the pursuers as to the roads ought to be adopted: finds, that with regard to the crofts of Craighaar, there is no difference betwixt the parties, as the defender consents that the clause proposed shall apply to them in terms of the lease thereof: finds, that the great anxiety of the parties seems to arise from the different views which they entertain of the effect of the clauses contained in the leases, and whether the proprietor under the leases had warranted any other than a legal use of the water, or those rights and privileges which the proprietor upon the bank of a river is entitled to exercise: finds, that, however beneficial it might be to both parties to be acquainted with their precise rights, and the guarantee undertaken under the existing leases referred to, yet as there is no declaratory action to that effect, the Lord Ordinary has not the means of determining that question: appoints each of the parties to prepare a feu-contract upon each of the agreements, in terms of this interlocutor, as the Lord Ordinary, in case of their differing with regard to the arrangement of the clauses, will remit to some conveyancer of eminence, to report upon the proposed deeds.”

“The Lord Ordinary, having considered the original

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Footnote

* This appellation, which occurs throughout this interlocutor, is more correctly expressed in the former interlocutor by the term feu-charter .

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Against this interlocutor Mr. Paton complained by representation to the Lord Ordinary, and twice reclaimed by petition to the whole Court. But the Courts respectively refused the prayers of the petitioner, and adhered without variation to the interlocutor pronounced. Whereupon Mr. Paton, the defender in the Court below, presented his appeal to parliament.For the Appellants— Mr.Wetherell and Mr. Heald . For the Respondents— the Solicitor General and Mr. Lumsden . *The Lord Chancellor . The question arising out of this case may be presented accurately, by stating, that it was, whether the Lord Ordinary in an interlocutor of the 2d of June, 1814, had rightly construed the feu-contract in question, when in his interlocutor he directed that it should be carried into execution in these words:

to those subjects contained in the leases.”

“And the feu-contract shall dispone and confer all the rights and privileges contained in the leases as

Footnote

* The most material of the arguments at the bar are noticed in the judgment. The reasons for and against the appeal are to be found in the printed cases.

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The subsequent interlocutors of the Court of Session appear to me simply to affirm what the Lord Ordinary had so directed, to be done, and therefore it is only necessary to consider the effect of his interlocutor to arrive at a decision of the present question.The summons, according to the literal effect of it, is a summons calling upon the Appellant to execute a draft which had been drawn, pursuant to the award of Mr. Cathcart; and it called upon him also to produce a legal and sufficient feudal title in his person , to the “ said lands and others foresaid.” said lands and others foresaid.” The meaning of this must be, that he was to produce a legal and sufficient feudal title in his person, to the lands and others foresaid privileges which are now claimed. It was impossible he should ever produce a feudal title to appurtenances and privileges which do not belong to the lands. In such case, his obligation would rest only in covenant or agreement.It struck me that it would have been very important to consider whether the Respondents could succeed at all, unless they succeeded in obtaining a decree from the Court of Session, calling upon the Appellant to execute that draft. To answer the difficulty, it was urged, that the party against whom this summons was levied, had waived the right of raising such a question; because he finally rested his defence upon the ground that he was required by the Respondents to grant certain privileges which were not within the terms or the intent of his contract. And it was farther argued, that if this Court should be

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The contract in this case may be considered as a contract for indemunity.This suit is in substance or effect, (allowing for dissimilarities between English and Scotch proceedings), in the nature of a suit in a court of equity in England, for the specific performance of a contract. In such a suit, if it turns out that the Defendant cannot make a title to that which he has agreed to convey, the Court will not compel him to convey something less, with indemnity against the risk of eviction. The purchaser

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Footnote

* In the English Courts of Equity, the general rule is, that a vendor shall not be compelled to give ah indemnity. Balmanno v. Lumley , 1 Ves. & Bea. 224. The purchaser has no remedy for defect of title, but by action at law for the damage he has suffered by the non-performance of the contract. But in a case where the subject was a church lease, and the contract in effect, as construed by the chancellor, was, that C. and his representatives should use their utmost endeavours to obtain renewals before expiration, so as to give an interest for 63 years to the vendee; and the right and interest, by such means of renewal, was to be secured to the vendee according to the contract by a covenant, binding all the real and personal assets which C. should leave at his death; and it proved, that the bulk of C.'s property was bound up by an entail, and therefore the covenant which the vendee obtained could only bind such unentailed property as C. should leave to his heir. Eldon, C. directed, that if the difference between the interest described in the particulars of sale, and that which the vendor had to give, which was in fact the difference in value between the covenants before-mentioned, could be ascertained, the purchaser should have a compensation to that amount, by abatement from the purchase money; or if the difference could not be valued, that he should have an indemnity . An inquiry was directed before a master in chancery, to ascertain such difference in value; and if he should be unable to do so, then he was directed to settle such security by way of indemnity , as, under all the circumstances of the title, it should appear just and reasonable that the defendant should execute, to indemnify the purchaser and those claiming under him, in case he or they should be evicted, molested, disturbed, or prevented, by reason that a title cannot be made according to the representation of the title in the particular, for the same enjoyment as if the vendor could have made good the representation, and the contract had been carried into execution accordingly. See Milligan v. Cooke , 16 Ves. p. 1.

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In a case like the present, where no title can be made, it is the practice, I presume, of the Court of Session to direct, (as they seem to have done in this case), that the vendor shall make a title as far as he can; and for all that is defective; for all such parts of the contract as he cannot specifically perform, they compel him to enter into warrandice, and render himself liable in damages. The question has been argued at the bar, and is discussed in the printed papers before the House, whether that is the course which the Court of Session ought to have taken. In the view which I take of the case, it is not necessary to decide that question.Before I advert to the several instruments upon which this question occurs, I will state what I conceive to be the settled doctrine of English Law upon the subject now in discussion. If a lease be made of a house or an estate, the lessor having no title,—and the instrument by which the lease is made contain nothing more than words of demise, with a general covenant that the lessee shall enjoy the premises, that is as long as the relation of lessor and lessee continues.—In such a case, the lessee does not usually look into the lessor's title, but he takes a covenant which binds the lessor, that he shall have the enjoyment of the thing

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I do not presume to say, that there may not be special agreements, which might entitle the vendee to call for much larger covenants than those to which he is entitled under ordinary contracts: but, according to the established principles of the

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With respect to the first instrument, the articles bearing date the 20th of February, 1792, it is to be observed, that they were reduced into a formal

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Upon inspection of the agreement of 1792, it is to be observed, that the whole of the first article is confined in its terms to the agreement to set and let in tack the lands; there is not in this first article a single word about privileges or appurtenances, or others; the words which are usually engrossed in the formal conveyance; yet

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The second article applies to privileges which cannot belong to lands, lying very near the river Don. That the owner of these lands might be intitled to certain uses of the river, as privileges belonging to the situation, is not difficult to believe; but that he should have as privileges belonging to the lands, such a privilege as the second article professes to confer, appears to me incredible. The words used in that article are so large, that, upon repeated questions addressed to the Bar, no person has been able to state the precise meaning of them.In the printed papers, (which I have read very carefully) as well as at the Bar, it has been contended, that this article has not the extensive sense in which the Respondents construe it; but more extensive words I think cannot be used. Where the Appellant means to restrict his grant within the limits of his power, he does so in words; for in granting a right to a passage boat

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“Again, as to the privilege of quarrying stones, to be used on such parts of the hill of Grandhome as shall not happen to be planted or improved;” that is a privilege which cannot possibly belong to the land. The privilege of quarrying on my estate could not belong to land, part of my estate demised by lease; it could not be a privilege inherent or belonging to the lands so demised. The right of cutting a canal through the grounds, which is given by a subsequent article, is another liberty which could not possibly be inherent in the lands demised.
The tack dated 26th Oct. 1797, by which other lands, &c. were demised.Upon that part of the articles by which it is agreed, that the lands demised shall be paid for at a certain rate per acre, much observation is made in the papers; and it has been suggested also at the Bar, with respect to the instrument relating to the lands first demised, that a money payment is to be made for the land of so much for each acre, and that therefore it is distinguishable from that other instrument which has been made the subject of comment, in which a sum is expressly given for the liberty of taking the water. But

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There is much argument in the papers on both sides, with respect to the effect of the clause in the articles, which provides for the building of the bleach field, and the price to be given for it at the end of the term. On the one hand it is contended, that, as the Appellant is to pay only 500 l. at the end of this term for all he was to take, he had a valuable consideration to look to, if he continued to be the lessor to the end of the term, which he would not have, if he was to be considered as feuing in perpetuity. On the other hand it is answered, that the lessees might strip or denude these buildings of all the machinery in them, and leave only the naked walls. Undoubtedly the difference of consideration is very great between the walls with the machinery, and the walls only, without the machinery.

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In more than one of these articles allusion is made to certain cruives; and rights are reserved by the Appellant, with a view to their maintenance. The cruives, I suppose, were fishing cruives in this river, of which it is contended these articles are so improvident as to entitle the lessees utterly to destroy the value. Under these circumstances, a question would arise, whether the agreement, even according to the articles, must not be construed as giving so much of the water of the Don as to leave the cruives for the fisheries uninjured.According to my construction of this agreement, the Appellant had exceeded his powers; he had agreed somehow or other to secure, whether by covenant or warrandice, or otherwise, “the privilege and liberty of taking in water from the river Don, for the purpose of driving machinery, and other uses, and of cutting canals through the grounds, as the Respondents should judge necessary;” a most improvident agreement to warrant a privilege which perhaps he could not secure, and for the failure of which he must be answerable in damages, if the Respondents were disturbed in their enjoyment. If, under these circumstances, the inheritance had been purchased by the lessee, no doubt such a purchase might have been so managed, as to prevent a merger of the lease; but, in the absence of special provision, there would have been a merger of the lease, and the lessee having become the purchaser, would in law have taken upon himself all the obligations by which the former owner of the

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ln the case before us, it must be remembered, that the contract provided an option for the Respondents, either to pay a feu-duty in perpetuity, or that they might redeem the duties at so many years' purchase, within a given time after the feu-contract was executed, and yet the special contract is supposed to be this, that after vesting the inheritance in the vendee for ever, the vendor was for ever to continue liable for all the damages which might be incurred by the vendee, in the exercise of the privileges and liberties in question. That a man may make such a covenant I do not

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31st March, relating to the lands first leased.In the tack made in the year 1797, the demise is of the lands, “with the privilege and liberty to the a said tacksmen and their foresaids, of taking in water from the river Don, for the purpose of driving machinery and other uses, and of cutting canals through the said grounds, as they shall judge necessary.” Upon this lease there can be no doubt, and improvident as it was for the Appellant as lessor to enter into such a warranty as he did in this lease, yet if that is clear upon the terms of the instrument, he must abide by his contract. Now in this lease, to remove all doubt as to the privileges and liberties intended to be granted, they insert these special words, “together with the whole liberties and privileges in favour of the said tacksmen,” (not belonging to lands , but) “particularly specified in the articles and conditions of lease above-mentioned, to which reference is hereby had for that purpose, and which shall remain as effectual and as binding upon the said John Paton and his foresaids, as if the same had been again herein particularly enumerated and expressed.” In this instance, there is a contract specifically executed, according to terms which leave no doubt, and it is a contract between the same parties, who had, or might have had, that transaction in their memory. If, upon framing the feu-contract, it had been expressly stipulated, that the Appellant was to warrant or feu the privileges and

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It is not immaterial to observe, that in another part of the instrument now under consideration, the Respondents are bound “to implement, perform, and fulfil the whole other obligations, prestations, and conditions, incumbent upon them as tacksmen, contained in the foresaid articles and conditions of tack.” I refer to that part of the case, because these are articles of tack, which grant not only privileges beyond those which belong to the lands, but they are articles of tack which contain a great many reservations to

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3d & 9th Feb 1810.By the feu-contract, after the recital of the leases, grants, and agreements, and a description of the premises, it is agreed, that the Appellant shall establish and make out a good and satisfactory title in his own person, as heritable proprietor of the lands aforesaid, which would bring an obligation upon him to make out a good title to those lands, as heritable proprietor of them, and such title would carry with it a good title to all the privileges belonging to the lands. But how he is to make a good title to privileges not belonging to the lands, I do not comprehend. He may warrant the privileges, and agree to make a title to them, but if they do not belong to him, how is he to fulfil such an obligation specifically?The lease dated 31st March 1797.The parties to this contract had before them the tack and the articles of agreement; which articles of agreement enumerated all those privileges which are now the subject of litigation; and in a separate article from that which would have carried the privileges incident or belonging to the land. In the contract which followed, the Respondents had expressly, in one part of it, (in order to remove all doubt), provided that

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I do not forget the words which are added, “with all the rights, members, privileges and appurtenances thereunto belonging, or which ever have been competent to the heritor of the lands to claim and enjoy.” If it has been competent to the heritor of the lands to claim and enjoy the privilege of drawing water from the Don, it is a privilege thereto belonging; and if the Respondent takes the feu-charter in the very terms in which this feu-contract is expressed, he will have that privilege. On the other hand, if the privilege of drawing the water is not a privilege belonging to the lands, or not a privilege which it was ever competent to the heritor of the lands qua heritor of the lands to

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Such appears to me to be the right construction of the instrument, and I think the words used do not include the privilege claimed. I am the more confirmed in that opinion when I consider that part of this instrument by which the Respondents have an option to redeem the annual feu-duty, and purchase the inheritance upon paying a consideration about equal to a sum of 12,300 l. Under these circumstances it is supposed that the Appellant entered into a contract to deliver over the inheritance of the lands to the Respondents, with a covenant, binding him to all eternity to secure to the new owners the use of

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To the objection that this is an extravagant warranty, which it is hardly credible a man parting with the inheritance of lands should agree to give, it is answered, that he did warrant the same privilege for 99 years. That is undoubtedly an improvident undertaking, but nothing like the improvidence of a guarantee of such a privilege in perpetuity. On the other hand, when the Respondents became the heritors of the lands, it is not unreasonable to suppose, that having purchased the inheritance, they took upon themselves the bargain and warranty of their lessor. He had by agreement bound himself by warranty for 99 years; and from the year 1792 to 1797, the Respondents, under that agreement and the lease which followed, had taken water for the supply of their extensive machinery, without disturbance, except in a trifling instance. But upon the new contract for purchase of the inheritance, the question is, Whether the Respondents by the specialties of their contract, have precluded the application of that rule which governs such transactions

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May 19 and 23, 1810 ante, p. 55.As to the other feu-contract, if that by express terms binds the Appellant to perpetual warranty, upon which I give no opinion; are we to say that, because one agreement operates by express terms, the same construction is to be put upon the other agreement which has no such terms, and where the parties think proper to use precisely the same terms, with respect to the premises which never were in lease, * as with respect to those which were?The case does not require any judgment to be given upon the construction of the feu-contract. The only question now at issue is, How it shall be carried into execution? That will be most properly done by transferring to the proposed feu-charter the very terms respecting rights and privileges which were used, and are to be found in the contract. The question, what are the rights and privileges which pass under the terms contained in the feu-charter, may then become the subject of actions of declaratur; and the Court of Session, sitting as a Court of Equity, must consider

Footnote

* This observation relates to a grant of three acres of land, not before in lease, which are included in the agreement of the 3d and 9th of February, 1810. In abstracting the deeds which form the ground-work of the case, this material passage was omitted, partly from inadvertence and partly from the desire of curtailment.

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Whenever the question shall arise as to the right construction of the conveyance so executed, it will be matter of consideration on the one hand,

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May 19 and 23, 1810.Feb. 3 and 9, 1810.With respect, to the medium of proof assumed in the Court below, it may be remarked as singular, that although the two agreements were separated in the progress, yet one of them was admitted as evidence to assist in the construction of the other; and the judicial conclusion is, that because the one agreement has words which in the judgment of the Court conveyed, or meant to convey, certain rights, therefore the other agreement must be considered to have embodied in it the same intention, although different words are used.It appears to me upon the whole, that if the interlocutor of the Lord Ordinary is altered, by striking out the words in italics, * and by declaring that, instead of those words in italics being inserted, this conveyance ought, to be made in the very terms of the feu-contract, that alteration will be sufficient, and that is an alteration which the rights of the parties require.April 7, 1819.The judgment of the House was given according to the suggestion of the Lord Chancellor, with the alterations proposed by him as above stated.

Footnote

* The words are, “and the feu-contract shall dispose and confer all the rights and privileges contained in the leases, as to those subjects contained in the leases.”