Prudential Assurance Co. v. Cheyne

Factual and Procedural Background

The case arises from a feu-contract entered into in 1875 between Company A, proprietors of a plot of land in The City, and others, and a vassal, referred to as Defendant, and others. The contract granted the land heritably and irredeemably for a yearly feu-duty. After various transmissions, Plaintiff, as trustee of a deceased party, became vested in portions of the ground by disposition from a security company. When the feu-duty fell into arrears for over two years, Company A, as superior, raised an action of declarator of irritancy of the feu in the Court of Session.

To prevent forfeiture, Company B, acting as mid-superior between the superior and Plaintiff, paid the arrears of feu-duty, expenses, and costs to Company A and was assigned all rights for recovery. Company B then raised an action of maills and duties in the Sheriff Court against Defendant as principal debtor and forty-six tenants of properties on the portions of land. The action sought to have the tenants pay their rents directly to Company B to satisfy the arrears of feu-duty.

Defendant alone appeared and defended the action, denying liability for certain portions of the feu-duty and disputing the allocation of feu-duties. The Sheriff-Substitute found in favor of Company B, holding the action competent and that the pursuers were entitled to recover the arrears from the tenants. Defendant appealed to the Court of Session, challenging the competence of the action.

Legal Issues Presented

1. Whether an action of maills and duties is a competent remedy for a superior (or assignee of a superior) to recover arrears of feu-duty from tenants of the vassal.
2. Whether the superior can sue tenants of the vassal directly for rents to satisfy feu-duty arrears, effectively substituting himself as landlord.
3. Whether tenants can be held liable as intromitters for arrears of feu-duty that accrued before they took possession.
4. The proper legal remedy available to a superior for recovery of feu-duties in arrear.

Arguments of the Parties

Appellant's Arguments

• An action of maills and duties is not a competent remedy for a superior to recover feu-duty arrears against his vassal or the vassal's tenants.
• Institutional writers and legal authorities do not recognize such an action by a superior; only two writers mention it as competent, and it is absent from authoritative works and procedural forms.
• The superior has granted away possessory rights and cannot displace the vassal from possession or enter into possession himself without proper authority.
• The proper remedy for the superior is poinding of the ground, not an action of maills and duties.
• The tenants cannot be held liable as intromitters for arrears of feu-duty that accrued before they took possession.
• The superior cannot enforce obligations undertaken solely between the vassal and tenants, as he is a stranger to those contracts.

Appellee's Arguments

• The action of maills and duties is suitable and analogous to other remedies of the superior and is recognized in practice.
• The superior has a real right to enforce feu-duty obligations, which are real burdens on the land, against any vassal or tenant in the chain of tenure.
• The action is both real and personal, allowing the superior to sue tenants as intromitters authorized under their leases.
• Although poinding is a remedy, the action of maills and duties is simpler, less oppressive, and more fitted to modern land tenure.
• The tenants' rents are due and should be recoverable directly to satisfy the feu-duty arrears.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed the nature of an action of maills and duties, traditionally understood as an action to enter into possession of heritable subjects by having tenants pay rents to the pursuer. It recognized that while such an action is common for landlords or heritable creditors, it is not recognized as a remedy available to a superior for recovery of feu-duties.

The Court noted the absence of procedural forms or authoritative recognition for a superior bringing such an action, emphasizing that the superior has surrendered possession upon granting the feu and cannot unilaterally resume possession while the vassal's rights exist.

Legal authorities (Stair, Erskine, Bell) were considered, confirming that the superior's proper remedy for arrears is an action of poinding of the ground, not maills and duties. The superior's right is a real burden on the land, enforceable by real actions but not by displacing the vassal from possession through an action designed for landlords or heritable creditors.

The Court further reasoned that tenants cannot be held liable as intromitters for arrears that accrued before their possession, citing established precedents.

Although one judge dissented on grounds of convenience and modern practicality, the majority held that the strict principles of feudal law preclude the action of maills and duties by a superior against tenants of his vassal for arrears of feu-duty.

Holding and Implications

The Court's final decision was to sustain the appeal, dismiss the action as incompetent, and recall the interlocutor of the Sheriff-Substitute that had allowed the action.

This ruling means that a superior (or assignee of a superior) cannot use an action of maills and duties against the vassal's tenants to recover feu-duty arrears by ordering tenants to pay rents directly to the superior. The proper remedy remains an action of poinding of the ground or other recognized legal processes.

No new precedent was established beyond reaffirming existing feudal law principles concerning the remedies available to superiors for recovery of feu-duties.