The Principal and Professors of King's College, Aberdeen v. Lady James Hay and Husband [1854] UKHL 1_Macqueen_526

UKHL
The Principal and Professors of King's College, Aberdeen v. Lady James Hay and Husband
[1854] UKHL 1_Macqueen_526
REPORTS OF CASES ARGUED AND DETERMINED IN The House of Lords.

No. 50

The Principal and Professors of King's College, Aberdeen, Appellants v. Lady James Hay and Husband, Respondents1854 . 10th , 11th , 13th , 14th July , and 11th August .The Conditions of a sale by auction stipulated that the purchase-money should consist of a certain annual feu-duty, to be increased by the biddings; and for securing the regular payment thereof, a personal bond was to be granted, binding the purchaser, his heirs and successors in perpetuity, and a surety with him for ten years. The Bond bound the purchaser, his “heirs, executors, and successors” for all time. The Surety, by the same instrument, bound himself, his “heirs, executors, and successors” for ten years.Held (reversing the decision below)—That neither the obligor in the Bond, nor his general representatives, could, by alienating the estate, get rid of the obligation.The feudal doctrine that a Vassal on ceasing to be Vassal ceases to be liable for the feu-duty issuing out of the land,— held inapplicable to a case where the parties chose to make special stipulations.This case is very fully reported in the Court of Session (a) .The reasoning on which it turned is similar to that occurring in Millar v. Small (b) , and the Royal Bank of Scotland v. Gardyne (c) , decided by the House in 1853.The Lord Advocate (d) and Sir and Sir Fitzroy Kelly appeared for the Appellants. The Solicitor General (e) and Mr. Ross for the Respondents.

Footnote

( a ) Sec. Ser. vol. xiv. p. 675.( b ) Suprà Suprà p. 345.( c ) Suprà Suprà , p. 358.( d ) Mr. Moncreiff.( e ) Sir Richard Bethell.

Page: 527 ↓

The facts, as well as the arguments, deemed necessary to the decision, are embodied in the following opinion delivered from the Woolsack.The Lord Chancellor (a):Lord Chancellor's opinion.My Lords,the Appellants, who were the Pursuers in the Court below, are the Principal, Professors, and Members of the University and King's College of Aberdeen. The object of the summons was to obtain payment of a feu-duty of 502 l ., which fell due at Martinmas, 1847, and substantially to establish a right to that payment annually against the Defender, Lady James Hay, and her husband, she being the heir of her late father, James Forbes, and the claim being made under a bond executed by him in the year 1818. The facts are as follow:—On the 28th of May, 1818, the College or University being seised in fee of the lands of Bankhead, offered the same for sale by public roup. The Articles of Roup are as follow:—
“The foresaid lands of Bankhead, salmon-fishing, and others, are to be exposed to sale by way of feu, for the space of nineteen crops and years, from and after the term of Whitsunday, 1807, and are to be entered and set up at the yearly feu-duty of 100 l . sterling in money, and the price of fifty bolls of best farm or market bear, conform the sheriff fiars of Aberdeenshire, for the crop preceding each term's payment.”
The biddings were to advance at not less than one pound sterling from the 100 l . at which the lands were to be put up. Then there was this proviso. “Tertio. The person who shall be preferred to the purchase of the said lands, salmon-fishing, and others, shall be obliged, within fourteen days after the roup, to grant a personal bond to the Exposer's constituents, with sufficient security to their satisfaction for

Footnote

( a ) Lord Cranworth.

Page: 528 ↓

My Lords,the roup took place; and the property having been put up at the feu-duty of 100 l . a year, and fifty bolls of best market bear, the biddings went on, and a gentleman of the name of Duncan Davidson

Page: 529 ↓

On the 5th of August, 1818, Davidson, who had been the purchaser, signed a memorandum acknowledging that he had bid only as agent for James Forbes, and James Forbes was accepted as the purchaser. On the 12th of August, 1818, Forbes executed the bond which is now in question. It is in these words: “I, James Forbes, of Seaton, Esquire, considering, that upon the the 28th day of May last, the lands of Bankhead,” &c. “were exposed to sale by public roup, in way of feu, by David Hutcheon, advocate in Aberdeen, as having power to that effect from the Principal and Professors of King's College and University of Aberdeen, and that Duncan Davidson, advocate in Aberdeen, became purchaser of the same, for my behoof, at the yearly feu-duty after mentioned, and according to the conditions mentioned in the articles of roup of the said lands and others, by which inter alia it is stipulated that the purchaser should be obliged to grant a personal bond to the Exposer's Constituents with sufficient security to their satisfaction for the regular and punctual payment of the said yearly feu-duty, at the terms therein and after mentioned, for the space of ten years from the term of Whitsunday last, and containing also an obligation on the purchaser, his heirs and successors, for the regular and punctual payment of the said yearly feu-duty, in all time from and after the expiry of said ten years,” (that is, the surety was to be bound for ten years, and the principal for all time) “have therefore become bound, as I, the said James Forbes, the purchaser of the foresaid lands and others, do hereby in implement of the said articles of roup, so far as incumbent on me, bind and oblige myself, my heirs, executors and successors, duly and regularly to make payment to Doctor William Jack, Principal,” and

Page: 530 ↓

On the 23rd of October following, the College executed a feu-charter, granting the lands in question to James Forbes, his heirs and assignees, at the feu-duty of 502 l . and the price of the bolls referred to. He was duly infeft, and on his death the Defender Lady James Hay, as his only daughter and heiress, was infeft, and she and her husband, in June 1847, sold the property to James Gauld, upon which sale infeftment followed, dated and recorded 10th July, 1847.The question is whether the liability of the Defender Lady James Hay, as the representative of James Forbes, ceased on her selling the land to James Gauld, as set forth in the proceedings, and on his being duly invested as the vassal. The Lord Ordinary (Lord Wood ) held that it did not. He was of opinion, that

Page: 531 ↓

A case precisely similar to the present occurred at the same time in the Court of Session, between Brown's Trustees and Webster (a) , and the two cases were argued together before all the Judges of that Court, who gave very elaborate opinions on the subject. Three of the consulted Judges concurred with the late Lord President and Lord Wood ,and five of them with Lords Ivory, Cuninghame , and Fullerton. It thus appears that your Lordships have the opinions of eight Judges in favour of the decision appealed against, and only of five against it. It now becomes the duty of this House to decide between these conflicting opinions.My Lords,I confess I have arrived at a clear opinion in favour of the view taken by the minority of the Judges.I will assume the law to be that the ordinary contract of a feuar in a feu-contract, is operative so long only as the relation of superior and vassal subsists. But,

Footnote

( a ) Sec. Ser., vol. xiv. p. 675.

Page: 532 ↓

Now here, I think it clear, whatever may be the ordinary doctrine, that the parties intended there should be a personal obligation independently of the feu-contract.In the first place the obligation is contained in a separate instrument. This of itself, though not conclusive, is yet a circumstance strongly tending to show that an independent liability was meant to be created. No doubt two or more instruments may so entirely form part of one transaction that they ought to be read and construed together. But that is not the case here. The obligation, so far from being substantially a part of the feu-grant, was in truth a document to be executed by the purchaser before the seller was bound to convey at all. Until the bond was given, the vendor was under no obligation to part with his land. It is difficult in such a state of things to suppose that the construction of the bond could depend on the terms of a deed not yet executed, and which in the present case was not executed for more than ten weeks afterwards.There was no purchase money, except the feu-duty, and the bond to secure it came in place of what in an ordinary sale would have been a bond for the purchase money, a bond clearly of an independent character, not to be interpreted by anything to be found in the subsequent deed of conveyance.It was strongly pressed by the Counsel for the Appellants, that in this case there is a cautioner bound for a period of ten years. This obligation, it was said,

Page: 533 ↓

But the true ground on which I consider the Judges who were in the minority to have been right, is that construing the bond according to the plain meaning of its language, there is no doubt but that it is binding on Forbes, the obligor, and his representatives for ever. It is in form a mere personal bond creating a personal obligation. Such an obligation was one which it was reasonable, or at all events lawful, for the vendors to require. Having obtained it without fraud they are entitled to put on it its plain literal construction, till it is shown that it was intended by the parties to have a more restricted operation. I observe that some of the Judges say the Appellants were bound to have made their meaning clearer, that they ought apertius mentem explicasse. But with all deference, I think that is to cast the burthen on the wrong party. The Appellants say they desired to have a personal bond, which should bind the purchaser and his representatives for ever, and such a bond they obtained. It was for the party granting the bond, if he did not intend it to operate to the full extent which its language imported, to introduce words qualifying its generality. This he has not done, and I must therefore assume that he intended his words to have their ordinary construction. Nothing can be more inconvenient than to allow parties to bind themselves in terms which, if interpreted literally, are clear and unambiguous, and then to cast

Page: 534 ↓

I therefore move your Lordships to reverse the interlocutor complained of.Lord Brougham's concurrence .I ought to state that although my noble and learned friend Lord Brougham, who heard this case with me, is not here present to express his concurrence, yet we have gone over the subject together: he has seen the short notes that I made in order to guide myself in the observations which I should address to your Lordships, and he has authorised me to say that he fully concurs.Interlocutor of the Inner House reversed, and Interlocutor of the Lord Ordinary affirmed (a) .

Footnote

( a ) In this case attention was directed to some differences between the Lord Chancellor's speech in Millar v. Small , as given suprà suprà , p. 345, and in the short-hand writer's notes.

The Lord Chancellor :

“The Report of Mr. Macqueen is extremely accurate. When I read it, I supposed that I must have written the judgment.”
Solicitors: G. & T. W. Webster.— James Davidson.