Denniston, Macnayr, and Company, v. Duncan Macfarlane
Date: 16 February 1808 Case No. No. 15.
A purchaser of a tack for nineteen times nineteen years from the tenant, cannot demand production of the landlord's title.
A tack may be validly granted to a company socio nomine.
A disposition and infeftment 'to A. B. and the other partners of a company,' found to be a valid investiture to A. B.
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On the 7th October 1776, James Donald gave a lease “to Murdoch Gillies, and Company, their heirs, executors, assignees, and subtenants whomsoever, of these lands, houses, and yards in Upper Miltoun, for the space of nineteen times nineteen years.”
The company then consisted of Mr. Cunningham of Lainshaw, Peter Murdoch, James Gordon, and Robert Dunmore.
In 1787, Mr. Cunningham retired from the concern, and sold his share of the company property to the other partners.
They, in March 1778, assumed two new partners, Neil Jameson and James Macdowal; and they disponed the above-mentioned tack to themselves and these new partners nominatim, “and to the survivors of them, the said whole partners, for themselves, and in trust for behoof of those who may happen to be partners of this company for the time, according to their respective shares, rights, and interests in the stock of the company.”
On the 26th August 1791, Anne, Mary, and Margaret Lang, as fiars, and Margaret Aitken, as liferentrix, disponed “to and in favours of John Gillies, manager, and one of the partners of the Dalnotter iron-works belonging to Messrs Murdoch, Gordon, Gillies, and Company, and the other partners of the foresaid Company, according to the respective rights and interests in the stocks of the said company, and to the disponees of the said partners or majority of them, and the heirs and assignees of such disponees,” the lands of Easter Milntown and Shearer Brae. On this disposition infeftment was taken, and a charter of confirmation was granted by the superior, both in the same terms as the disposition.
By disposition of date the 28th November 1800, and subsequent dates, James M'Dowal, James Gordon, and John Gillies, surviving and remaining partners of Murdoch, Gillies, and Company, with the consent of the trustees upon the estates of the other partners, conveyed the subjects contained in the above lease and disposition to Robert Dennistoun, Richard Dennistoun, Robert Macnair, James Macnair, and Walter Tassie, copartners of the company of Dennistoun, Macnair, and Tassie.
Walter Tassie, for himself and the other partners, sold the lease and property of these subjects to Duncan Macfarlane, writer in Glasgow, who bound himself to pay the price, “on receiving a proper and sufficient title to the premises with a sufficient progress of writs.”
A disposition in implement of this minute was offered to Macfarlane; but he objected to the sufficiency of the progress, and refused to accept of it or pay the price.
An action to compel him to accept the disposition, and to pay the price, was raised against him in the names of the partners of Dennistoun and Company. In defence, he stated a variety of objections to the titles offered him.
The Lord Ordinary reported the cause on memorials.
On advising these, the Court “Repelled the defences hitherto stated, and remitted to the Ordinary to proceed accordingly.“
The defender reclaimed; and his petition was followed by answers. In his reclaiming petition, he stated a variety of objections, but it does not appear necessary to report more than the following.
Argument for the defender.
I. As to the lease.
First, No title in the person of the granter of this lease has been produced to the defender. But without such production, there can be no secure title to the lease itself ; and as this lease is for so long a period that it is equivalent to a feu, the purchaser of it has a right to demand a complete progress.
Secondly, The lease was granted to the Company of Murdoch, &c. socio nomine. But a lease is a real right in lands, which cannot be held by a mere political person. It should have been vested in some real person in trust for the company. It cannot be said that it was vested in the partners, for it is fixed law that the right of a partner in a company is merely personal not real.
II. As to the property.
The disposition from the Langs, and infeftment on it, is quite inept, for it is given ‘to John Gillies and the other partners of the Company,’ a form of disposition and infeftment which is quite unknown in our law. All grants of feudal rights must be to particular persons named and designed; Craig, Lib. 2. Dieg. 2. § 23; Erskine, B. 3. Tit. 2. § 6. This is essential to the whole system of feudal titles, and particularly to the recording of these titles,—and accordingly it has been decided to be the law in the cases, Blackwood against the Earl of Sutherland, 7th November 1740, No. 22. p. 14327. and Melville against the creditors of Smeiton, 14th February 1794, No. 23. p. 14327. It is vain to say that the disponees are named by reference to the contract of copartnery, for that contract is not expressly referred to; and, at any rate, it forms no part whatever of the feudal title, nor ever could be recorded as such.
Nor can it be said, that the disposition is to John Gillies in trust for the rest. It is not so given, but to him directly, and to the other partners directly; nor is it given to him in toto, but for his share in the Company stock, and to the other for their share in that stock.
Argument for pursuers.
I. As to the lease.—First, In all questions about leases, it is to be presumed that the granter of a lease had a sufficient title in his person if nothing appears to the contrary. The tenant has no right to call for production of the titles of his landlord, merely that he may be more sure his lease is good. Nor can a purchaser of the lease demand of him a production which it is not in his power to obtain. Sir A. Edmonstoune, the heritor, will not give production of his titles to the pursuer, and is not bound to do it, therefore the pursuer cannot be bound to give it to the defender.
Secondly, There never was supposed to be an objection in our practice to a lease granted to a company socio nomine. It is quite a common form. There is no formal authentication, or record of leases; so that even if it was necessary to name the lessees individually, that is sufficiently done by reference to the contract of copartnery, which is a depth as public as the lease itself.
II. As to the property.
Though it would have been more regular to have named all the disponees in the disposition, yet this was not essential. It may be done by reference; and there was here, by implication, a sufficient reference to the contract of copartnery, which was registered in the books of Council and Session before the date of the disposition. But, Secondly, If the other partners of the Company were not effectually invested by this disposition, at least the disponers were wholly divested, and therefore the full right has passed into Gillies, who was named and designed. Whether he was made a trustee or not, is of no consequence. If he was invested, the title offered to the defender is sufficient; and if no right passed to the other disponees, he must have been fully invested.
The Court thought that there was nothing in the objections to the lease.
And that the second answer to the objection to the disposition was sufficient, especially as all parties interested in the subject were ready to concur in the disposition; and accordingly ‘Adhered to the interlocutor reclaimed against.’
Lord Ordinary, Polkemmet.Act. Connell.Alt. Fletcher.Agents, David Wemyss, W. S. and John Dillon.Pringle, Clerk.
Fac. Coll. No. 31. p. 109.
