No. 61. Ceres School The pursuers reclaimed, and argued ;-(1) If the pursuers had been evicted by the defender's author they would have had a claim against him under the clause of warrandice contained in the feu-disposition Dec. 12, 1895. of 1833, as he was a gratuitous disponee of their author. But the Board v. defender was not in a better position than his author, because he had M'Farlane. accepted a disposition containing a clause of warrandice which excepted from the warrandice all feu-rights granted by the disponer or his predecessors. This exception included the feu-disposition of 1833, even although that deed had never been feudalised, and that deed accordingly could not be challenged by the defender. A person who accepted a disposition with a clause of warrandice in these terms was put upon his inquiry, and could not found upon the fact that a feuright granted by the predecessor of his author was not on record. The records were not conclusive in all cases as to the extent of the rights conveyed, e.g., they did not disclose servitudes. (2) At anyrate, the effect of the transference to the School Board was to give them a pleted by infeftment. The pursuers' title, on the other hand, is an unfeudalised feu-disposition granted so long ago as 1833. "It is not said that the defender had any notice of the pursuers' right, or that he even knew of the existence of the school. Prima facie, therefore, it is a case to which the general rule that a singular successor takes the lands free from the personal obligations of his predecessor and unaffected by burdens not appearing upon the records applies. "The pursuers' argument was mainly founded upon the terms of the clause of warrandice. "That clause excepts from the disposition leases and feu-rights, but gives liberty to the defender to challenge leases or feu-rights on any ground not inferring warrandice against the disponer. "The argument of the pursuers was that the defender could not challenge their right, because to do so would infer warrandice against his author. "It may be doubted whether the pursuers have a title to state that argument, because they were not parties to the disposition, nor in any way privy to the contract between the defender and his author. But apart from that, it seems to me that a challenge of the pursuers' title on the part of the defender would not infer warrandice against the disponer. The pursuers' title is challengeable not on account of any defect in the disponer's title, or anything which he has done, but simply because the pursuers, or those in whose right they are, neglected to put their title upon record. In such a case I do not think that there could be any recourse under the clause of warrandice in the feu-disposition, because the defect in the title is entirely attributable to the grantees. "The pursuers relied upon the case of Wight v. Earl of Hopetoun (M. 10,461). In that case, however, the ground of judgment was that Lord Hopetoun was barred personali exceptione from challenging the perpetual lease which was in question, it being expressly excepted in the clause of warrandice in the disposition. It appears to me that that decision has no application here, because there is no express mention of the pursuer's feuright in the disposition, and, as I have said, it is not alleged that the defender had any notice of the existence of any right on the pursuers' part, or even knew of the existence of the school. "I may add that I do not think that the pursuers derive any aid from the provisions of the Education Act, 1872. Section 38 provides for the transference of schools in the position of that in question to the school board. It is there enacted that the persons 'vested with the title to any such school,' may transfer such school, together with the site thereof, and any 1 Wight v. Earl of Hopetoun, 1763, M. 10,461. No. 61. vested title to the subjects transferred, and this right was as valid as a feudalised title. Section 38 of the Education Act was to be disDec. 12, 1895. tinguished from section 39. A formal conveyance, such as was referred to in section 39, was not required to vest the subjects transferred in the school board in terms of section 38. Ceres School Argued for the defender ;-(1) The exception of "feu-rights" contained in the clause of warrandice in the disposition in the defender's favour did not include unfeudalised dispositions. The defender in purchasing was entitled to rely upon the records, and the pursuers had only themselves to blame if their title was challengeable because it was not recorded. The case of Wight was not applicable, for there the perpetual lease which was challenged by the defender was expressly excepted in his title. (2) The provisions of section 38 of the Education Act did not give the pursuers a better title than was possessed by their authors. LORD ADAM.-So long ago as 1833 the pursuers' predecessors obtained a feu-disposition from the then proprietor of Craigrothie of a small piece of land, for the purpose of building a schoolhouse. The feu-disposition contained a clause of warrandice, and we are told no infeftment was taken on the disposi tion. In 1873 the successors of the original disponees, under terms of the Education Act, transferred the ground and school buildings to the pursuers, but neither were they infeft. Now, on the other hand, the property of Craigrothie estate had during this period changed hands several times without any mention being made in the dispositions of the feu given off it in 1833. Then, in 1883 Mr Frederick Honey sold it to the defender, and the dispositive clause in the disposition did not except the piece of ground occupied by the pursuers, but there was a clause of warrandice in the following terms:-(His Lordship here quoted the clause of warrandice). Now, it appears to me that this is simply a competition of titles. The defender land or teacher's house held and used in connection therewith to the school board,' and if the school board, with the sanction of the Board of Educa tion, accept such transference, the school, with the site, and any land or teacher's house included in the transference, shall be vested in the school board.' By the 39th section it is provided that the transference may be effected by an ordinary disposition or other deed of conveyance by the persons vested with the title, recorded in the Register of Sasines.' "If, as in this case, the trustees of a subscription school have only a personal title, I do not think that a transference carried out under the 38th section gives to the school board any better title than that of the trustees. I think that they only acquire right to the title as it stands in the person of the trustees. Further, the 39th section points out the way in which the school board may complete their title. It is to be by an ordinary disposition by the persons vested in the title. If the School Board had taken a disposition from the trustees in 1873, when the transference is said to have been made, and put it upon record, there would have been no question; but, as they neglected to do so, I am of opinion that they are in no better position than the trustees would have been in if the transference had not been made, and that their sole title, in a question with the defender, is the unfeudalised feu-disposition of 1833, of which the defender is not said to have had any knowledge or notice. "I am therefore of opinion that the pursuers are not entitled to the decree which they seek." 1 Wight v. Earl of Hopetoun, 1763, M. 10,461. M'Farlane. is infeft in the land with a regular feudal title, and the proposal of the pur- No. 61. suers is to oust him from the land-for this is what their action comes toDec. 12, 1895. on the ground that they have a personal title thereto. I certainly have Ceres School never heard of the real title yielding to the personal in such a competition. Board v. But the first argument advanced by the pursuers is on the clause of warrandice, and it is said that in the grant to the defender there were excepted "all feu-rights granted by me or my predecessors." Now, I think that by "feu-rights" are meant completed feu-rights capable of being brought into competition with those disponed, and not merely personal rights, and I agree with Mr Kennedy that the exception does not apply to a case where the defect in the disponee's title arises from his own neglect in not carrying out the plain duty to himself of making his title good by infeftment. The only other argument is based upon sections 38 and 39 of the Education Act of 1872, but it does not appear to me that these sections make any difference. If there has been a conveyance to the School Board, that cannot give to them any better title than their authors had. If the latter had only a personal title the statutory transference cannot make it a real one. I am therefore of opinion that the Lord Ordinary's judgment is right. LORD KINNEAR.-I agree. I must confess that I have some sympathy with the position of the pursuers in the case, because they and their predecessors have been in possession for many years of the land occupied by the schoolhouse. It was given to their predecessors in 1833 by a disposition by the then proprietor of Craigrothie for the reddendo of a penny Scots, and they have been in possession of it ever since. The estate of Craigrothie has passed by various gratuitous dispositions to disponees of the original proprietor, but in the year 1883 the lands were bought by the present defender, who is willing to allow the School Board to remain, but only on payment of a feu-duty of £5 a year. I am afraid that the position in which the School Board are placed must be ascribed to those who administered their affairs, because they might have made their right certain by taking infeftment from the superior, or after the alteration in our conveyancing procedure by putting their disposition on record. They took no such step, and accordingly their right was a personal one when the defender bought the estate of Craigrothie. The only ground which is suggested on which their right can prevail against the real right of the defender is that the clause of warrandice in the disposition in his favour must be held to except the grant in the pursuers' favour. I am unable to accept that construction of the clause of warrandice. I agree with Lord Adam that the "feu-rights" which are excepted in the clause must be rights which are capable of being brought into competition with the right granted to the disponee. If we were to take the opposite view the result would be that no buyer could contract in safety upon the faith of the records, but every buyer would run the risk of being evicted by parties holding latent personal rights not appearing upon record. We must assume, because there is no averment to the contrary, that the defender knew nothing of this right when he purchased the property. He therefore bought the estate in the No. 61. faith that no rights existed except such as appeared on the record, and the question which has arisen is, as Lord Adam has said, whether in a competiCeres School tion of titles a personal right which is older in date can prevail against his real right. I am perfectly clear that that is not a question capable of dis Dec. 12, 1895. Board v. M'Farlane. cussion. On the second point, as to the effect of the Statute of 1872, I also agree. LORD M'LAREN was absent. THE COURT adhered. GRAY & KINNISON, S.S.C.-MARTIN & M'GLASHAN, S.S.C.-Agents. No. 62. Dec. 13, 1895. which JOHN SUTHERLAND, Pursuer (Respondent).-W. Brown. BEAUCHAMP C. URQUHART, Defender (Appellant).-Johnston-Cullen. Lease-Claim by tenant under a separate contract-Counter claim by landlord under the lease-Liquid and Illiquid.—In an action by an outgoing tenant against his landlord for the price of the waygoing crop, had been ascertained, as provided for by the lease, in a submission entered into between the parties at its termination, the defender, who had taken over the crop and admitted that the price was due, pleaded that he was entitled to set off against the pursuer's claim an illiquid counter claim under the lease for damages against the tenant for miscropping and for failing to upkeep buildings. Held that the landlord's illiquid counter claim under the lease was not a relevant defence to the tenant's claim for the sum found due to him by the decreet-arbitral. Lovie v. Baird's Trustees, October 16, 1895, supra, p. 1, distinguished. IN April 1895 John Sutherland, farmer, raised an action in the Sheriff Court at Aberdeen against Mr Beauchamp C. Urquhart, proKincardine, prietor of the estate of Byth, concluding for payment of £68, 1ST DIVISION. Sheriff of Aberdeen, and Banff. 11s. 10d. The The pursuer averred that he had been tenant under a lease of the farm of Upper Tillymauld, belonging to the defender, up to Whitsunday 1894. At his removal the defender entered, along with him, into a submission to arbiters to fix the value of the waygoing corn crop. arbiters fixed the value at £136, 7s. 7d., and the defender took over the crop. The pursuer was due to the defender certain sums, including £62, 6s. 7d. for rent, and the sum sued for was the balance, after deducting these sums, of the valuation price. The defender admitted these averments, and that he refused to make payment of the balance claimed, " and explained that the pursuer has failed to implement the terms of the said lease as to the upkeep of buildings and the cropping of the land, and has rendered himself liable to the defender in the sum of £205, 13s. 7d., for which sum he has raised an action in this Court, together with the liquidate penalty of £72 as stipulated in the said lease." The pursuer pleaded;-(2) No relevant defence. The defender pleaded;-(1) The pursuer being due the defender a larger sum than that now sued for, the defender is entitled to compensate, and should be assoilzied, with expenses. On 27th June 1895 the Sheriff-substitute (Robertson) sustained the pursuer's second plea in law, and decerned against the defender for the sum sued for. On appeal, the Sheriff (Crawford), on 16th August 1895, affirmed No. 62. s Substitute's interlocutor.* Dee. 13, 1895. The defender appealed to the Court of Session, and argued ;-The Sutherland v. claim and the counter claim were both referable to the same contract. Urquhart. They both resulted from the relation of landlord and tenant, and arose in the course of determining, on the expiry of the lease, the pecuniary rights and liabilities of the parties hinc inde. The valuation of the grain crop was carried through because of the provisions of the lease. The case of Lovie v. Baird's Trustees' was not distinguishable from the present, and should be followed. The respondent argued;-This was not a case of mutual claims. founded on the same contract. The submission to arbiters and the lease were distinct and separate agreements. Lovie's case was not in point. In any view, the person who had received the grain crop was bound to pay the ascertained price of it, and was not entitled to set off an illiquid and indefinite claim for damages extending over a course of years against a liquid claim of debt.2 At advising, LORD KINNEAR. This is an appeal from a decision of the Sheriff of Aberdeen in an action at the instance of a tenant against his landlord, but the action is not founded on the contract of lease, but on a separate and distinct contract, which, so far as the record goes, has no necessary connec * "NOTE.-There is no doubt considerable force in the argument that it would be equitable and convenient that the pecuniary claims on either side, arising out of the relation of landlord and tenant of a farm at the expiry of a lease, should be considered and be disposed of together. I have therefore given very careful consideration to the numerous cases which have more or less bearing on this question, particularly to those which were cited at the hearing. I think it is the case that, in the question whether under any circumstances and in any form an illiquid claim can be presented as an answer to a liquid claim, the tendency of the Supreme Court for some time has been to relax the rigidity of the old rule. But even in the most favourable cases for the defender, such as Stark v. Davie, 18th July 1876, 3 R. 114, and Munro v. M'Geogh, 15th November 1888, 16 R. 1893, the illiquid claim against a demand for rent has been sustained, as entitling the defender to an abatement of the rent. In short, it has, in certain circumstances, been accepted as a direct answer to the claim for rent. Obviously the defender's claims for damage for miscropping are not in the same sense a direct answer to the pursuer's claim in this action, and they have not been so pleaded. They are pleaded on record in the form of compensation, but it is clear that the claims not being liquid that plea cannot be given effect to, and it was not insisted in at the hearing. What the defender did claim was the right of retention, which he asked should be given effect to, either by conjoining the actions or sisting the process. I think there is distinct authority against conjoining an action founded on an illiquid claim with one founded on a liquid claim, and no precedent or authority for a different course was cited to me. The lease (which was produced) provided that in August in the year of removal the quantity of the grain crop should be ascertained by arbiters, and that the proprietor or incoming tenant should then be at liberty to take possession thereof, the price to be according to the fiars' prices to be fixed in the following spring. 1 Lovie v. Baird's Trustees, Oct. 16, 1895, supra, p. 1. 2 Macrae v. Gordon, June 1, 1842, 4 D. 1310, 14 Scot. Jur. 423; M'Rae [Pherson, Nov. 19, 1843, 6 D. 302, 16 Scot. Jur. 169. |