Scottish Court of Session Decisions

This was an action of declarator and removing at the instance of John Balleny Mon crieff, insurance agent, Ochil Street, Alloa, and his wife, against Thomas Lawrie, hotel-keeper, Mill Street, Alloa. The trustees of the late Stephen Nicol Morison, bookseller and publisher, Alloa, were allowed to sist themselves as defenders. The facts sufficiently appear from the opinion of the Lord Ordinary ( Kyllachy), who by interlocutor dated 8th January 1896, gave decree in terms of the conclusions of the summons.

Opinion.—“The pursuer in this case seeks to have it declared that certain back premises adjacent to a certain tenement belonging to him in Mar Street, Alloa, belong in property to him (the pursuer). He also seeks to have decree of removal against the defender—the owner of a neighbouring tenement—who is in possession of the back premises. Both parties derive right from a common author, viz., Morison's trustees, and these trustees have been allowed to sist themselves as defenders to the action, and to adopt the defences. The case has accordingly been taken as if these trustees had been called as defenders, and as if the conclusions of the summons—or at least the declaratory conclusion—had been directed also against them.

One peculiarity of the case is that the pursuer has undoubtedly obtained a title to the premises in question, and a title prior in date to that alleged by the defender. This is not admitted on record, but the proof shows, I think conclusively, that the description in the pursuer's title includes the ground on which the buildings in dispute stand. It also appears, and indeed was not disputed, that the pursuer's title was prior in date, and was first recorded in the Register of Sasines.

It is therefore perhaps doubtful whether the defenders should have been allowed to try the question raised upon this record without bringing in the first place an action of reduction. I have not, however, felt bound to decide the case upon that technical point. I incline to think that the defenders, having come into Court in response to the pursuer's challenge, are entitled to table all defences which go to negative the pursuer's right. At all events, as some proof was necessary, I (rightly or wrongly) allowed proof in general terms, and the whole case being now before me, I propose to decide it upon its merits.

The facts are shortly these:—Morison's trustees were owners of two sets of subjects in Alloa, viz., (1) certain shops and houses in Mill Street; and (2) certain shops and houses in Mar Street. The two properties were contiguous, hut held under different titles, and there was certain back ground between them, which beyond doubt belonged to the Mar Street property, but on which a back-shop, bedroom above, and wash-house adjoining, had been erected and used in connection with the Mill Street property. Both properties were exposed for public sale on the same day, and under the same articles—the Mill Street property being the first lot and the Mar Street the second. The description of each lot was taken from the old titles, by which, as I have said, the back buildings went with Mar Street (lot No. 2). This, however, not being intended, a marginal note was added to the description in the articles of lot No. 1 (the Mill Street subjects) in these terms, ‘as the said subjects are presently occupied and possessed by the representatives of the late Mr Stephen Nicol Morison and the London and Newcastle Tea Company, &c. (the Mill Street tenants).’ This marginal note was read at the roup as part of the articles, but was not authenticated by being mentioned in the testing clause, nor was any corresponding alteration made in the description of lot 2. The roup having proceeded, lot 1 (Mill Street) was (subject to the point which I shall presently notice) purchased by the defender Lawrie. Lot 2 (Mar Street) was similarly purchased by the pursuer Moncrieff. And I have no doubt whatever that the pursuer and his agent knew quite well (1) that according to the description of lot 2 in the articles (read in connection with the situation and history of the premises) he (the pursuer) was purchasing the back premises in question, and (2) that the exposers (Morison's trustees) were under a different belief, and had no intention of selling these premises as part of lot 2.

In these circumstances, if the question had been at once raised and tried whether the pursuer could hold to his bargain and enforce implement of it according to its legal construction, I should have had little doubt that the decision must have been in the negative. The exposers were in error as to the extent of the subjects sold,

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and the pursuer knew of their error, and took advantage of it. The pursuer allowed the exposers to agree with him in certain terms, knowing that the exposers attached one meaning to those terms, while he, the pursuer, attached to them another and different meaning. A contract so made the law will not enforce, and will, if necessary, reduce. The case would have come within the principle of Steuart's Trustees v. Hart, 3 R. 192. See also the English cases collected in Anson on Contracts, 6th ed., pp. 133–139.

What happened, however, was this. The pursuer at once tabled his construction of the articles, and claimed a conveyance of the Mar Street property as therein described—avowing that he held, and meant to maintain, that the back-shop, bedroom, and wash-house were within the description. The exposers demurred, but after some correspondence they gave way; and in the full knowledge not only of the pursuer's contention, but of its soundness in point of fact, granted him the conveyance which he claimed. In other words, having power to repudiate the contract of sale, they preferred not to do so, but accepted it as valid, and executed it; and did so by disposition delivered prior to the defender's disposition, and with the result, as I have already said, that the pursuer's disposition was the first to be made real by infeftment.

I cannot, I confess, see how in that state of the facts, the defenders, or either of them, can appeal to the doctrine of Steuart's Trustees v. Hart. Whatever may have been their error as to the effect of the articles, the trustees and exposers were under no error as to the effect of the disposition. They had ample notice of the pursuer's contention, and for reasons, good or bad, they accepted it. That is their position; and as regards this ground of defence, it does not appear to me that the defender Lawrie is in a better position, or can have higher rights than his authors.

It remains to consider whether the defender Lawrie has not, in virtue of his prior purchase of the Mill Street subjects, and of the pursuer's knowledge of what was embraced in that purchase, a separate and independent ground of challenge of the pursuer's title so far as applying to the premises in dispute. There is no doubt that the Mill Street subjects were first exposed and sold at the roup. There is also no doubt that by the marginal addition to the articles of roup, these subjects were described in terms which may be held to cover the out-buildings in question. It is also certain that the pursuer heard the articles of roup read, including the marginal addition, before he himself bought the Mar Street subjects, and saw and heard the Mill Street subjects knocked down and sold to the defender Lawrie. If, therefore, the sale of the Mill Street subjects was a completed sale—if Lawrie had a completed contract right to those subjects before the Mar Street subjects were exposed and sold—I do not at present see reason to doubt that the defender Lawrie might reduce the pursuer's title as a title obtained and taken by the pursuer in the knowledge of his (Lawrie's) prior right. That would appear to follow from the legal doctrine established by the cases in the Dictionary under the head of ‘Private Knowledge of a Prior Right,’ Mor. 1689, et seq.; and by the more recent cases of Marshall v. Hynd, 6 S. 384; Petrie v. Forsyth, 2 R. 214; Stodart v. Dalziel, 4 R. 236. See also the English cases noted in Lord Shand's note in the last of these cases.

But the difficulty here is that by an unfortunate oversight in the conduct of the sale, there was not only an omission to authenticate the marginal addition on which the defender Lawrie's case depends, but also an omission to have the minute of enactment which constituted his purchase subscribed by one of the instrumentary witnesses. The pursuer maintains that these omissions are fatal to the defender's case, inasmuch as the alleged prior right was, as it now appears, not a completed right. He says—what is clear—that writing was necessary, and the only writing being improbative, he contends that at the time of his (the pursuer's) purchase of the Mar Street property there was locus poenitentice with respect to the Mill Street subjects on the part of all concerned.

So far as the marginal addition is concerned, I am disposed to think that this difficulty might be met. There appears to be some doubt how far a marginal addition requires, as matter of solemnity, to be noticed in the testing clause (Bell's Lect. i. p. 75); and in any case it may perhaps be held that the defect of authentication was here redressed by rei interventus. But the failure to obtain the subscription of one of the instrumentary witnesses to the minute of enactment is a more serious matter, and after full consideration I have been unable to see any answer to the objection. It may be that the non-subscribing witness might have subscribed ex intervallo. That is a question not, I think, quite settled (see Thomson v. Clarkson's Trustees, 20 R. 39). But in point of fact the witness has not yet subscribed, and it can hardly be suggested that he can now do so. The 38th and 39th sections of the Conveyancing Act of 1874 do not, I am afraid, either of them, apply, and under the old law there can, I think, be no doubt that the minute of enactment is still improbative.

On the whole, therefore, I have been compelled to the conclusion that the pursuer is entitled to decree. I regret that such is the result, because I think it clear that he took and obtained an unfair advantage. But as against Morison's trustees, he obtained that advantage while the latter had their eyes fully open; and as against the defender Lawrie, he prevails by reason simply of the unfortunate mistake made with respect to the authentication of the minute of enactment.”

The defenders reclaimed, and argued—The sellers here were in essential error as to the extent of the subjects sold, and the pursuer by not disclosing his position until

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after the minute of enactment with him was signed took advantage of that error. He was not entitled to enforce a bargain made under such circumstances— Steuart's Trustees v. Hart, December 2, 1875, 3 B. 192. The disposition subsequently granted in his favour did not put him in a better position. It could only do so if it was a confirmation of the previous contract, and in order to operate as such it was necessary that it should have been granted (1) with knowledge that the contract on which it proceeded was not enforceable in law, (2) with the intention of waiving a ground of objection to the contract known by the granter to be good, and (3) with knowledge that it would have the effect of barring the granter from putting forward an objection which, apart from the confirmation would have been open to him—Kerr on Fraud and Mistake, 2nd ed., p. 330; Crowe v. Ballard, July 13, 1790, 2 Cox's Equity Oases, 253, per Thurlow, L.C., at p. 257; Murray v. Palmer, July 15, 1805; 2 Scho. and Lef. 474, per Redesdale, L.C. (Ireland), at p. 486; Morse v. Royal, March 8, 1806, 12 Vesey Jr., 355, per Erskine, L.C., at p. 373; Cockerell v. Cholmeley, March 17, 1830, 1 Russ. and My. 418, per Leach, M.R., at p. 425; Mulhallen v. Marum, January 18, 1843, 3 Dr. and War. 317, per Sugden, L.C. (Ireland), at p. 334; Kempson v. Ashbee, November 6, 1874, L.R., 10 Oh. 15, per Cairns, L.C., at p. 20. These conditions, or at least some of them, were absent here. (2) As in a question with Lawrie, the pursuer knew that prior to his contract for the purchase of the Mar Street subjects a right to the back premises in question had been acquired by Lawrie, and he was therefore barred from insisting on declarator in terms of the description in his disposition, and on removing as against Lawrie—Morison, sub voce Bona et mala fides, Private knowledge of prior right, 1689, et seq.; Marshall v. Hynd, January 18, 1828, 6 S. 384; Petrie v. Forsyth, December 16, 1874, 2 R. 214; Stodart v. Dalzell, December 16, 1876, 4 R. 236. There was here a duly completed contract, for the pursuer was not entitled to found on the defect in the minute of enactment as it was res inter alios acta for him. The signature of the second witness might have been added afterwards, but the necessity of this was superseded by the granting of a disposition in Lawrie's favour. The failure to mention a marginal addition in the testing-clause was not fatal to the validity of a deed.

Argued for the pursuer—(1) As in a question with the trustees—There was here no fraud. The pursuer made his proposition openly, and demanded and obtained a disposition without any restriction. In these circumstances the trustees were not entitled to prevent the disposition, which they had granted with full knowledge of the consequences, from now receiving effect. (2) As in a question with Lawrie—To bar the pursuer from the remedy he sought there must be a prior completed and binding contract of which the pursuer was aware. Here there was no such contract. The marginal addition was not mentioned in the testing clause, and one of the witnesses had not signed the minute of enactment. The latter defect could not now be remedied—Conveyancing and Land Transfer (Scotland) Act 1874, sections 38 and 39. There was therefore no legal evidence of a contract for the sale of heritage at the roup to Lawrie— Shiell v. Guthries Trustees, June 26, 1874, 1 R. 1083. The trustees could not have succeeded in an action for implement against Lawrie— Goldston v. Young, December 8, 1868, 7 Macph. 188. Such a contract could not be proved even to the effect of founding a claim of damages without a probative or holograph writing— Allan v. Gilchrist, March 10, 1875, 2 R. 587, where Walker v. Milne, June 10, 1823, 2 S. 338, was distinguished. If a contract could not be enforced by specific implement, it could not have any effect at all— M'Arthur v. Lawson, July 19, 1877, 4 R. 1134. The trustees were bound to take an available objection to an inchoate contract with Lawrie after they had given the pursuer a title to the same subjects. Accordingly, the objections to the pursuer's disposition receiving effect were groundless, and the case came to this, that he had a title to the subjects, and the defender Lawrie had none. The pursuer was consequently entitled to decree of declarator and removing as concluded for.

At advising—