Scottish Court of Session Decisions

On 5th February 1908 Malcolm Vivian Hay of Seaton, Aberdeenshire, brought an action against the Lord Provost, Magistrates, and Town Council of Aberdeen for declarator, inter alia, that the defenders were bound to accept a disposition or conveyance of “( a) All and whole the pursuer's right and interest in the links known as the Seaton or Old Town Links, including his rights in the foreshore of the sea and also on the south bank and foreshore of the river Don from the sea to the Bridge of Don, with a clause of warrandice by the pursuer from fact and deed only.…”

The following narrative is taken from the opinion ( infra) of the Lord President—The Town Council of Aberdeen proposed to take certain lands known generally as the Old Town Links under compulsory powers, and for that purpose promoted a Provisional Order. The proprietor of these lands, Mr Hay of Seaton, opposed the Provisional Order, and as often happens in the course of the progress of a Provisional Order, parties came to terms upon an agreement in respect of which Mr Hay of Seaton's opposition was withdrawn. That agreement was reduced to writing, and Mr Hay agreed to sell and the Town Council agreed to purchase ‘( a) All his right or interest in the Links known as the Seaton or Old Town Links, including his rights in the foreshore of the sea, and also on the south bank and foreshore of the river Don from the sea to the Bridge of Don; ( b) the land lying to the west of the Seaton or Old Town Links, and to the south of the south bank of the river Don, including the feu-duties payable for the houses on the east side of King Street immediately south of the Bridge of Don—All as the said subjects are shown on sheets Nos. 4 and 5 of the plans deposited with reference to the Aberdeen Corporation Provisional Order, and included within the limits shown upon the plan—such limits being titled “Limit of deviation of the land to be acquired,” and “boundary line of ground to be taken and limit of deviation for work.”’

Then the price and term of payment and entry and the question of the expenses of the disposition are settled in other articles. And the agreement goes on—‘The disposition to contain a clause of warrandice by the said Malcolm Vivian Hay from fact and deed only as regards the lands ( a), and a clause of absolute warrandice as regards the lands ( b).’

When the parties came to adjust the disposition they unfortunately did not find themselves at one. As regards the land second specified there was no question, but as regards the lands first specified the purchaser, as is usual, tendered the draft of the disposition, and the draft of the disposition bore—‘I, Malcolm Vivian Hay, Esquire of Seaton, in the county of Aberdeen, heritable proprietor of the lands and other hereinafter disponed.… dispone.… All and whole the portions belonging to me of the lands and others distinguished on the plans, sections, and book of reference referred to in the last-mentioned Act by the following numbers.… that is to say, the parts of the lands and estate of Seaton.… namely: In the first place—All and whole the tract of land known as the Seaton or Old Town Links,’ and so on.

“When that draft was submitted for revisal to the advisers of Mr Hay, they proposed to insert after the numbers referred to, and after the words ‘that is to say,’ the words ‘all my right and interest in the parts of the lands and estates’; and also to insert after the words ‘in the first place’ the words ‘all my right and interest in’ all and whole the tract of land; and as that would not suit the purchasers, the case has been brought before your Lordships. We are told that that is really the only question between the parties. Had there been anything else the ordinary course would have been for the Lord Ordinary to have remitted the adjustment of the disposition to a conveyancer, and then any objections upon the dispositions so adjusted by the conveyancer could have been heard by the Court.”

The defenders pleaded, inter alia—“(2) The disposition tendered by the pursuer not being in full implement of his obligations under the minute of agreement, the defenders are entitled to absolvitor.”

On 7th July 1908 the Lord Ordinary ( Dundas) pronounced the following interlocutor—“Finds that upon a sound construction of the minute of agreement between the parties, set forth on record quoad the subjects described in article 1 (A) thereof, the pursuer agreed to sell to the defenders, and they agreed to purchase from him, all his right and interest in the Links as therein set forth, and no more, and that the disposition must be framed upon that footing.”

Opinion.—“This action is raised by Mr Hay, proprietor of the estate of Seaton, which lies partly within the city of Aberdeen and partly contiguous to it, against the Corporation of that city. In 1906 the Corporation were promoting a Provisional Order by which they desired, inter alia, to acquire compulsorily certain parts of Seaton lying to the east of the Bridge of Don,

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south of the river Don, and west of the sea. In the course of the inquiry held before Parliamentary Commissioners with regard to the said Order, the parties entered into a minute of agreement, in consequence of which Mr Hay withdrew his opposition to the Order. The agreement is printed in full in article 5 of the condescendence. The questions now raised are as to its true meaning and construction; what was it that the pursuer thereby agreed to sell, and the defenders to buy; and what is it that must be included in the disposition to be granted? No difficulty arises except with regard to the part of the ground, referred to in the agreement, which is known as the Seaton or Old Town Links. The pursuer says that he only agreed to sell ‘all his right and interest in the Links’; but the defenders contend that he is bound to dispone to them the solum of the Links, subject only to an insertion in the warrandice clause that quoad that part of the lands sold the pursuer grants warrandice from fact and deed only. There is, or may be, a material difference between the positions respectively insisted in. If the pursuer is right, he has excluded from the bargain any part of the property which does not belong to him or in which he has no interest. If the defenders are right, they will obtain an ex facie absolute title habile for prescription. If they possessed upon that title for the necessary period, they would be safe from all challenge; but if someone should thereafter come forward claiming and establishing a right or interest in the land, the pursuer might be liable to him in damages. I cannot speculate as to the probability, or the reverse, of such an event occurring; I have only to determine what is the proper meaning and construction of the agreement, and in what form the disposition which is to carry it into effect ought to be expressed. In my opinion, the position taken up by the pursuer is correct, and that assumed by the defenders is erroneous. If one reads the first three articles of the agreement together, one finds, in my judgment, all the necessary ingredients of a valid contract of sale, viz., the parties to the contract, the subject-matter of it, the price, and the term of entry. A very significant distinction is drawn in the first article as to what the pursuer sells and the defenders purchase; for under head (A) the words used are ‘all his right and interest in the Links …’ while under head (B) the subject is described as ‘the land lying to the west of the Seaton or Old Town Links.…’ The only other clauses of the agreement which are at all material to the present case are articles 4 and 5; and these are ancillary to and executory of what has gone before. The fourth article is not, I think, in any way inconsistent with the pursuer's construction, which seems to me to be the natural and proper one, of article 1 (A). It provides that the disposition shall contain a clause of warrandice by the pursuer ‘from fact and deed only as regards the lands (A), and a clause of absolute warrandice as regards the lands (B).’ I can see nothing in that to affect or enlarge the carefully-worded description in article 1 (A) of what the pursuer thereby agreed to sell and the defenders to purchase. Article 5 provides that the disposition is to be granted under burden of the existing leases relating to the said subjects,—a proper and necessary stipulation, as there are existing leases of parts of the Links as well as of the other lands. The defenders complain that if the disposition is framed in precise conformity with the language of article 1 (A) of the agreement, it will not, as regards the Links, afford them a title habile for prescription, or indeed one upon which infeftment could properly follow. But, assuming this to be the result, as it appears to be, I think the answer to the complaint is that the pursuer did not undertake, and is not bound, to give the defenders a title to the Links on which they could prescribe. If my construction of the agreement is correct, I see no ground for making the pursuer go beyond the terms of his bargain, with results which might be prejudical to the position he carefully reserved to himself when he made it.”

The defenders reclaimed, and argued—The reclaimers were entitled to a proper feudal disposition, i.e., to a disposition of the lands with warrandice from fact and deed only. Such a disposition alone could give effect to the agreement above referred to. The respondent was infeft in the subjects in which he claimed only a right and interest, and the reclaimers were entitled to be infeft therein. In the disposition tendered by the respondent there was no proper warrant for infeftment under the old law, and such a warrant was essential. The respondent would be amply protected by the warrandice being from fact and deed only. Reference was made to Craig v. Hopkin (1732), M. 16,623.

Argued for respondent—What therespondent sold was not the lands but his right and interest therein, and the disposition tendered was the appropriate conveyance. A “right and interest” in property was an entity known to the law and could be separately conveyed. The disposition tendered was a habile title, on which to prescribe an indisputable right to the subjects, and if so that was sufficient. The respondent could not be called upon to convey what he had not sold, and what he himself had not got. A conveyance of “my right and interest” in land was a valid and effectual form of conveyance— Scott v. Magistrates of Dundee, December 7, 1886, 14 R. 191, 24 S.L.R. 120; Nelson v. Assets Company, Limited, July 3, 1889, 16 R. 898, 26 S.L.R. 613.