Scottish Court of Session Decisions

This was an action at the instance of the Leith Heritages Company (Limited) against the Edinburgh and Leith Glass Company for the sum of £10,000 sterling in the following circumstances:—

In 1874 the pursuers had purchased their glass works from the defenders. The purchase was negotiated by offer and acceptance in February 1874. The offer was as follows:—“We are instructed on behalf of clients to make offer to purchase from your company, at the price of £52,000 sterling, the property belonging to them in Salamander Street, Leith, and which is bounded, we understand, as follows— videlicet, on the north by the property of the North British Railway Company: on the south by Salamander Street, Leith; on the east by a road leading from Salamander Street to the shore; and on the west by a road separating your property from that of the Edinburgh and Leith Gas Works.” In accepting this offer the defenders' agents wrote—“We ought to mention that, as regards the boundaries of the property given by you, it is to be kept in view that there is a public road or street between the east and west works of the company, which is not their property, and of course is not included in the sale.” The pursuers adhered to their offer under this exception.

A minute of agreement was thereafter executed by the parties, dated 15th, 16th, and 19th October 1874. The first article was:—“The first parties agree to sell and the second parties agree to purchase, at the price of £52,000 sterling, the whole ground thereon and buildings belonging to the first parties, situated on the north side of Salamander Street, Leith, being the whole subjects disponed in a disposition dated 24th December 1852, granted by James Hill, merchant in Edinburgh, as trustee for the society or company established under the firm of the Edinburgh and Leith Glass Company, in favour of William Henry Brown, china merchant in Edinburgh, and others, as trustees of the said society or company, with the exception of the subjects lying to the south of the said Salamander Street.” In the fourth article it was agreed that “the second parties (the Heritages Company) shall accept the title as it now stands, and shall not be entitled to require the first parties to enter with the superiors of the said subjects, nor to make up any further titles to the same; without prejudice to the second parties, at their own expense, having right to make up further or other titles in the person of the first parties if the second parties think proper to do so.” The pursuers paid the price at Martinmas 1874, and received

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from the defenders a formal disposition of the property, dated 10th November 1874, granted by Dr Combe, as sole surviving trustee of the Glass Company, under a disposition dated 24th December 1852, in favour of himself and others. The disposition, after referring to the said minute of agreement, disponed to the pursuers and their assignees, heritably and irredeemably, “All and sundry those parts of the property of the said Edinburgh and Leith Glass Company situated on the north side of Salamander Street, Leith, with the buildings and others thereon, and with the whole privileges and immunities, parts, pendicles, and pertinents thereof, as the said subjects are described in the title deeds thereof as follows:— … . . (Seventh) “All and whole that piece of ground lying betwixt David Stewart's feu on the east and the road on the east side of the property in the fourth and fifth places hereinbefore disponed, with power to alter said road so as to be immediately to the west of David Stewart's feu, with all right, title and interest I, as sole surviving trustee foresaid, have therein, in virtue of an Act of Council of the Lord Provost and Magistrates of Edinburgh, bearing date the 3d day of September 1788, or otherwise, but that under the burdens and conditions therein mentioned, my said disponees being to stand in my place; together with all right, title, and interest which I, as trustee foresaid, or the said Edinburgh and Leith Glass Company, had, have, or could any way claim or pretend to the said whole subjects hereinbefore disponed.”

The disposition contained a clause of warrandice in the following terms:—“And I, as trustee foresaid, grant warrandice from my own facts and deeds only; and I, as trusty foresaid, and as authorised as aforesaid, bind the Edinburgh and Leith Glass Company in absolute warrandice.” The disposition was recorded in the Register of Sasines for the county of Edinburgh on 11th November 1874.

The piece of ground disponed in the seventh place in the disposition was between what were the east and west works of the Glass Company, which it entirely separated. It was on the average 167 feet long by 118 feet broad. It had always been vacant ground, and had been used as an access from Salamander Street to the sands. There was formerly a road running along the eastern boundary of the west works, and latterly a road through the middle was made by the public authorities of Leith in 1872; the rest was left waste and unenclosed. To this piece of ground the Glass Company had not a feudal title. Their right to it was derived solely from an Act of the Town Council of Edinburgh, dated 3d Sep. 1778, which authorised a charter to be made out in favour of the Edinburgh Glass-House Company, upon conditions mentioned therein. No charter was however obtained applicable to the said piece of ground, no feu-duty was ever paid in respect thereof, nor any possession obtained of it. In 1824 the defenders' company was formed, and purchased both the glass-works, which had previously belonged to separate companies. In the disposition in their favour mention was made of the piece of ground in question in precisely the same terms as in the seventh head of the disposition above quoted. The disposition contained an assignation to an open charter of resignation and an open feu-charter, but neither of these charters contained any reference to the said piece of ground, which, therefore, was not included in the infeftments following upon them. There was a separate clause of warrandice from fact and deed only applicable to the said piece of ground.

Similarly, in the disposition dated 24th December 1852, in favour of new trustees for the company, and also in the instrument of sasine following on it, recorded 5th January 1853, the said piece of ground was mentioned, the dispositive clause in the charter of 1824 having been copied into this deed; but no mention was made of said piece of ground in the act of infeftment, as it had been expressly excepted both from the obligation to infeft and from the precept of sasine in the disposition. In the Act of Parliament by which the harbour and docks of Leith were vested in commissioners, half of the said piece of ground was included in the description of the property so vested.

The agents for the pursuers admitted that on examining the titles of the various portions of ground conveyed to their clients, they discovered that the Glass Company had no feudal title to the piece of ground in question. They applied to the town council for a charter applicable to it, which, after some delay, was refused. They then proceeded to take possession of the ground by erecting a fence round it, but were stopped while doing so by the authorities of Leith, and their fencing removed. In these circumstances the pursuers demanded repetition of the price paid by them for this portion of the subjects, which, however, the defenders refused to give. The pursuers thereupon raided the present action and pleaded—“The pursuers having purchased the said piece of ground from the defenders under a disposition containing absolute warrandice, and having been evicted therefrom, are entitled to decree for the sum concluded for as the value thereof.”

The Lord Ordinary after proof pronounced the following interlocutor, dated 24th November 1875:—

“Having considered the proof and whole cause, and heard counsel thereon, Assoilzies the defenders in the conjoined actions from the conclusions of the summonses, and decerns: Finds the pursuers liable in expenses; and remits the account when lodged to the Auditor to tax and report.

Note.—The question is, whether the piece of ground referred to in condescendence 4, and marked on the plan as No. 7, was sold to the pursuers by the defenders under a warrandice of title; and I am of opinion that it was not. The ground, which is situated between the east and west works of the defenders has always been open ground—part being used as a road and part left waste. The defenders had no right to it other than the minute of council of 3d September 1788, quoted in statement 3, p. 16, and never professed to have any other. This was, of course, no title, but such precarious right (and it was literally a precarious right) as this minute gave they passed to the pursuers exactly as it had been passed to them. I do not assent to the argument by which the conveyance under the 7th head of the disposition is otherwise construed, and am of opinion that to construe it as an ordinary absolute conveyance of the ground,

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subject to the warrandice, would be unjust, and contrary to the meaning and intention of the parties. Taking the contract of sale as it stood on the offer and acceptance prior to the disposition, I am of opinion that there was no contract for a sale of this ground with warranty of title, and the purchasers' agent admits that when he prepared the disposition he knew that the sellers had no title to it, or other right than the minute of council. Whether at this stage (prior to the disposition) the buyers might have resiled from the bargain because of no title to this piece of ground I have not to consider; but to take the disposition (so peculiarly expressed) in the knowledge that there was none, and with an undisclosed view to an action of damages founded on the terms of the disposition as warranting a title, is a proceeding I am unable to approve of. The pursuers knew (their agent certainly did) that the disposition was not executed in that view of its meaning and effect. The striking peculiarity in the terms of the deed as regards this piece of ground relieves me of any difficulty which I might otherwise have felt in rejecting the pursuer's claim; but I desire to say that in considering a claim of damages the Court is, in my opinion, entitled and bound to look beyond the technicalities of conveyancing language, and to refuse the claim if it shall appear that the bargain, as the parties understood and intended it, was fulfilled.”

The pursuers reclaimed, and argued—The thing disponed was the piece of ground with a road upon it, and in addition there was given all right, title, and interest which the disponer possessed therein, and the clause of warrandice warranted the title to the subjects conveyed. If it turned out that there was no title, that was just one of the cases which the clause of warrandice was intended to meet. It was not competent to look at the missives or the agreement of sale, as the disposition, being the final contract, overrode all previous communings; but if the writings passing between the parties prior to the disposition were looked to, the pursuers' case was rendered clearer, because (1) a road was the only thing excepted, and a clearly defined road existed upon the waste ground; and (2) it could not be seen from the titles, the knowledge of which was said to bar the pursuers' claim that possession had not followed upon the Act of Council and the deeds shewed that the subject had continued in the defenders' titles.

The defender argued—There was no attempt here to prove an agreement different from that which was embodied in the disposition, and it was quite competent to look to previous communings to find out what was actually conveyed, and in any view it was competent to do so in the present action, which was in substance an action of damages. The Court was also entitled to know the circumstances under which the contract was made, and the state of the parties' knowledge when it was made ( Forlong v. Taylor, 3 S. and M'L. 210). It did not admit of dispute that at the date of the disposition the ground was lying waste, and the pursuers' agent admitted that it had been pointed out to him as ground which the defenders claimed, and that he saw from the titles that the defenders had no title to the ground. The terms of the dispositive clause were most peculiar, and only contained a disposition of any right in reference to the said piece of ground which the defender might be bound to have, and what the warrandice clause did was merely to warrant that right to the buyer. To give effect to the pursuers' contention would simply be to make the clause of warrandice a dispositive clause instead of merely a clause warranting the sellers' title to what had already been disponed.

At advising—