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SCOTTISH_Shaw_Court_of_Session

Page: 844↓

Urquhart

v.

Halden No. 259.

Court of Session

1st Division D

June 2 1835

Ld. Fullerton, Lord Balgray, Lord President, Lord Mackenzie, Lord Gillies

John Urquhart, Pursuer.— D. F. Hope— G. G. Bell. James Halden, Defender.— Rutherfurd— Paterson.

Subject_Sale—Servitude—Warrandice.—

A party possessed ground adjoining to the park of the Duke of Hamilton, and he sold to the Duke a negative servitude restraining himself from erecting steam-engines, &c.; he afterwards sold the ground to another party, without mentioning the existence of this servitude—held, that he must either purge the servitude within a reasonable time, or that the purchaser was entitled to be free of the bargain.

In 1812, James Halden, tanner in Hamilton, presented a petition to the Sheriff of Lanarkshire, setting forth, that he was “proprietor of these grounds called Effiescroft, which lie immediately adjoining to his Grace's hay-yard, at the head of the garden at Hamilton Palace, part of which grounds his Grace was desirous to obtain by excambion, in terms of the late act of Parliament relative to entails, in order that he may annex the same to his policy and pleasure-ground at the head of the said garden, near the said palace, and plant or otherwise improve them; and it is likewise a desirable object for his Grace to have the said James Halden bound up from erecting any brewery, foundery, steam-engine, candlemaker's work, or any other nuisance whatever, on the remainder of his said property of Effiescroft, all of which the said James Halden is willing to comply with; and in exchange for these grounds thus derived, and restrictions aforesaid, his Grace is willing to give off to the said James Halden, his heirs and disponees, the present bark-mill of Hamilton,” &c.; that the bark-mill, &c. was part of the Duke's entailed estate, &c.; that Halden equally desired the excambion, and, therefore, it was proposed, under 10 Geo. III. c. 51, to dispone to the Duke as much of Effiescroft as should be equivalent to the bark-mill, &c. The petition then proceeded:—“The said James Halden at the same time obliges himself, his heirs and successors in the remaining parts of the said lands of Effiescroft, not to erect any brewery, foundery, steam-engine, candlemaker's work, or any other nuisance whatever thereon in time to come.”

The Sheriff made a remit to inspectors, who reported in favour of the excambion, “the said Duke giving, in addition to the said bark-mill of Hamilton, to the said James Halden, the sum of six hundred pounds sterling as the difference of the value of the subjects so exchanged; which sum, with the said bark-mill, would, in their opinion, be equivalent to the acre and sixty-eight falls of Effiescroft, or thereby, before mentioned.” The Sheriff, “in respect it appeared that the subjects proposed to be exchanged, as mentioned in the said report, were of just and equal value, authorized the said exchange to be made by contract of excambion.” Halden, “in consideration of the disposition after granted in his favour, and also of the sum of six hundred pounds sterling, instantly advanced and paid to him by the Duke of Hamilton,” disponed the said portion of Effiiescroft to the Duke, and did “bind up, restrict, and restrain himself, and his heirs and successors whatsomever, from erecting any brewery, foundery, steam-engine, candlemaker's work, or any other nuisance whatsoever, on the remainder of the said property of Effiescroft or Euphan's Croft herein before particularly described, and for that purpose consented that this restriction shall be inserted in all the renovations of the fee of the said lands of Euphan's Croft.”

These proceedings were immediately recorded in the Sheriff-court-books. Halden made up his title to the remainder of Effiescroft in 1825, by obtaining infeftment under a precept of clare constat from the Duke, in which there was no reference to the negative servitude imposed in the contract of excambion.

In November, 1832, Halden sold the remainder of the lands of Effiescroft to John Urquhart of Fairhill, for a price of £3000. At this time there was a heritable debt of £2000 upon it, and the titles were in the hands of the heritable creditor. Halden bound himself “to disburden the said lands and others of all debts and encumbrances whatever, which may or can affect the same, contrary to the stipulations hereof, or to the prejudice of the said John Urquhart or his foresaids, and that before settling the transaction; or it shall be in the option of the said John Urquhart and his foresaids to pay and discharge therefrom all real or heritable debts affecting said lands and others; and the said James Halden binds and obliges himself to free and relieve the said John Urquhart of all ministers' stipends, and other public burdens,” &c.

The agreement contained a consent to registration, and acknowledged a payment of £100 to account of the price. There was no mention made by Halden of the contract of excambion, or of the existence of the negative servitude.

In January, 1833, soon after the titles were placed in Urquhart's hands, he objected that the negative servitude must be purged, or he must be freed from the bargain. It did not appear that he was aware of the existence of the excambion or servitude previously. Halden having refused this, Urquhart raised a declarator to have it found that Halden was bound to purge the servitude within a reasonable time, or that he, Urquhart, was entitled to repayment of the £100, which was paid to account, and to be free of the bargain.

Halden registered the agreement of sale, on which he gave a charge to Urquhart, who presented a bill of suspension. The Lord Ordinary (Moncrieff) “Refused the bill, under this provision, that the debt secured on the property shall be paid and discharged unico contextu with the payment of the price, or that the complainer shall be entitled to apply a proportional part of the price in payment thereof.” ^*

Urquhart reclaimed, and the Court remitted to the Lord Ordinary with instructions to pass the bill.

In the declarator, Halden pleaded in defence, 1. That the ground had been sold in express reference to a plan for feuing dwelling-houses and gardens, which intimated by obvious implication the existence of the restrictions against erecting offensive works, and did not prevent the enjoyment of the most valuable uses of the ground.

2. That the restrictions being merely in the contract of excambion would not affect a bona fide singular successor, and, therefore, he was not bound to purge them.

3. That the existence of a negative servitude did not entitle a purchaser to rescind the sale; that, at least, it was premature to do so until the Duke had put the servitude in force against him; and that the special clause to purge incumbrances referred to the heritable debt, and similar burdens, but not to this.

Urquhart answered, 1. That the plan was merely referred to in order to show the extent and position of the ground; that the ground was peculiarly well adapted for such works as were prohibited by the restrictions; and that he had in view the power of establishing such works, when he made his purchase, and would not have made it had he been aware of the restrictions which interfered with the most valuable uses of the ground; but this was irrelevant, as he was entitled to the unfettered use of the property.

2. That these restrictions implied a negative servitude, and were undoubtedly good against a singular successor; and Halden could not deny their validity, as they were granted onerously by himself. But, at any

_________________ Footnote _________________

* “ Note.—The Lord Ordinary has no idea that under a sale of this kind, in the terms specified, the vender undertakes any obligation to remove from the subject the feudal burdens or servitudes which effect it by the titles. The purchaser is understood to know these; and if he means to object to any thing in particular, he should either refrain from offering, or make a special stipulation on the subject. Yet, after all, it is not clear that the servitudes alluded to do effectually burden the subject in the person of a singular successor. The statement of such difficulties now, betrays rather too much the unfair desire to depart from a concluded bargain.”

rate, a purchaser, paying a full price, was not bound to try the question of their validity with the Duke.

3. That the purchaser was entitled to have the property cleared at once of this burden, and the special obligation bound Halden to do this. He was not bound to wait till the Duke put the servitude in force; and, There could be no doubt of the Duke's intention to enforce the servitude, which was manifest from his interest in preserving the amenity of his pleasure grounds, and also from his having paid a price for getting Halden to agree in the contract of excambion, to submit to the restrictions.

The Lord Ordinary found, ^* “That by missives of sale, dated the 23d

_________________ Footnote _________________

^* “ Note.—The summons concludes alternatively, either that the defender shall disburden the lands of the negative servitude constituted by the defender, or, in the event of his failure to do so, that the bargain shall be annulled, and the action is laid, both on the special clause in the missive, and on the warrandice. It does not appear to the Lord Ordinary that the action can be maintained on the clause of the missive relating to ‘debts and encumbrances,’ which expressions must, in sound construction, and by reference to the context, be held to apply to pecuniary, or other burdens admitting of being at once cleared off, by payment or performance. But, on the other hand, the Lord Ordinary does not concur in the argument of the defender, that the negative servitude is a burden of which the pursuer ought to have satisfied himself before entering into the transaction, and which therefore cannot give occasion to any claim on the warrandice. He thinks, that if the purchase is made in the ignorance, on the part of the purchaser, of such an obligation, and, a fortiori, when the burden was imposed by the act of the seller himself, and was not communicated to the purchaser, there must be room for such claim, in the event of loss arising from the servitude taking effect. Now, in the present case, the negative servitude in question, though constituted by the defender himself, was not communicated to the pursuer; and, although the defender avers the pursuer's knowledge of it at the time of the transaction, he declined, upon the question being put to him by the Lord Ordinary, to undertake a proof of that averment. In these circumstances, if the negative servitude had been actually enforced against the pursuer to his loss, the Lord Ordinary thinks that, on the score of eviction to the extent of such loss, he would have had a good claim. But as yet there is no actual eviction, nor even distress; and, although it is laid down in some cases, ‘that if a plain ground of eviction shall appear from inconsistent deeds of the granter, he may be sued, even before eviction, to purge all such encumbrances,’ the present case certainly does not admit of dispensing with the usual requisites for sustaining such an action. For, in the first place, There is no averment, on the part of the pursuer, of any intention of erecting any buildings of the kind, falling under the negative servitude; secondly, There is no specific averment that the buildings, of the nature struck at by the servitude, form a more valuable use of the property than those which the pursuer has unquestionably a right to build; thirdly, There is no averment, and there are no means of knowing, in the present state of matters, whether any, or what sort of building, would be objected to, or could be competently objected to, by the party in whose favour the servitude is constituted; and, lastly, There are no means of ascertaining prospectively, in the present action, whether any building proposed to be erected by the pursuer would be prevented by the proper effect of the servitude, or on the ground of nuisance at common law; in which last case no claim on the warrandice could lie. Upon these grounds, the Lord Ordinary, though holding that the warrandice may in a particular event take effect, and finding accordingly, thinks that the conclusions of the action, as now laid, cannot at present be sustained, and therefore he has dismissed it, under a reservation of the pursuer's right to bring a new action, in the event of a proper distress, or eviction.”

day of November, 1832, the pursuer purchased from the defender, at the price of £3000 sterling, a piece of ground, part of the lands of Effiescroft, adjoining the town of Hamilton: That, by the terms of the said missive, as well as the nature of the transaction, the defender, the seller, was bound in absolute warrandice: That some time before the said sale, the defender had, in a contract of excambion with the Duke of Hamilton, bound himself, and his ‘heirs and successors, not to erect any brewery, foundery, steam-engine, candlemakers’ work, or any other nuisance whatever, on the remainder of the said lands of Effiescroft;’ which remainder forms the piece of ground sold to the pursuer: That this obligation, or negative servitude, was not communicated by the defender to the pursuer, at the time of the sale, and that the defender declines to undertake a proof that it was known to the pursuer at that time: That the clause of the missive, binding the seller to disburden the lands of ‘all debts and encumbrances,’ cannot, in sound construction, be held to apply to the negative servitude above-mentioned: That such obligation or servitude will, if enforced to the detriment of the subjects purchased, create an eviction covered by the clause of warrandice: But, in respect that no such eviction has yet taken place, and that there are no means of ascertaining, in the present action, whether or not it ever may take place, dismissed the action as now laid; reserving to the pursuer, in the event of distress or eviction, grounded on the negative servitude libelled, to raise such new action on the warrandice as he may be advised, and to the defender his defences against the same, unless in so far as disposed of by the preceding findings: Further, found no expenses due to either party, and decerned.”

Urquhart reclaimed, and, in reference to the note of the Lord Ordinary, stated, that he had expressly averred that the restrictions struck at some of the most valuable uses of the subject, and he was ready to prove the averment, if necessary.

Lord Balgray.—I think the interlocutor contrary to some of the first principles of our law. The Lord Ordinary commences with several specific findings, in which I concur; but from these very premises I would just arrive at the opposite conclusion from his Lordship. The action is dismissed “in respect no eviction has yet taken place;” and there, I conceive, is the error. Urquhart paid a full price for this subject. The seller was infeft by precept of clare constat, in 1825, and his sasine made no reference to this servitude; and he himself, in carrying through the sale, never alluded to it, or warned Urquhart of its existence. For the price paid to him he undertook to give a valid disposition to a free and unfettered subject, and it is a subject totus teres atque rotundus, which he must give. Now he does not perform this, if ho only gives the subject affected with all these burdens. The seller was himself the party who had constituted the negative servitude, and he was bound to have communicated its existence to the purchaser.

Lord President.—I take the same view of the case.

Lord Mackenzie.—I am of the same opinion. I think the negative servitude was effectually constituted by the obligation onerously undertaken by the seller; and, at all events, it is not the seller who can dispute that. Indeed, this seems to me, in substance, to be a very short case. The land lay adjoining to the park of the Duke of Hamilton. Part of its value, and a very obvious part of it, arose from this circumstance, because it was an important object to the Duke to acquire a negative servitude over the ground, and the right of selling such a servitude greatly enhanced the worth of the subject. Halden sold this to the Duke in 1813, and then, after he had sold this, which was a very valuable part of his right of property, he turns round and sells the whole subject over again to Urquhart, just as if the full right of property had remained entire in himself. It is said that there has yet been no eviction, but I do not very well understand this view. I think there is complete eviction, for the Duke has remained, ever since his agreement with Halden, in full and complete possession of the negative servitude. If any attempt was to be made to set up a steam-engine, the Duke would instantly get an interdict; and, if such a thing were wanted to supply a matter of form, I conceive there would be nothing more easy. But it would only be an unmeaning expense to do so.

Lord Gillies concurred.

The Court recalled the interlocutor; and, as Halden craved time to endeavour to purge the servitude, the Court remitted to the Lord Ordinary to allow time for this purpose; but subjected Halden in the expenses hitherto incurred.

Solicitors: Bowie and Campbell, W.S.— Jardine, Stodart, and Fraser, W.S.—Agents.

SS 13 SS 844 1835