Scottish Court of Session Decisions

Colonel Alexander was fee-simple proprietor of the estate of Ballochmyle, in the county of Ayr. The estate was held partly of the Crown and partly of subject-superiors, and until the transactions after-mentioned portions of it were held of the Earls of Loudoun. The Glasgow and South-Western Railway passes through the lands, and in 1851, and again in 1873, portions of the estate were parted with to the railway company for the purposes of their line. By feu-disposition, dated 1st April 1878, Colonel Alexander disponed to the railway company one imperial acre of ground in the parish of Mauchline and county of Ayr, with the servitude right of leading pipes from a reservoir to be formed upon the said acre of land to the company's station at Mauchline. The consideration given by the company was an annual feu-duty of £17. Although described in the feu-charter as held of the Crown, this piece of land was in this action averred by Colonel Alexander to be part of the lands of Welton, which were held of Mr Campbell of Catrine, with whom he had entered. In the month of May 1879 the representatives of the Earl of Loudoun exposed for sale the superiorities of certain baronies in the county of Ayr. J. B. W. Lee, S.S.C., Edinburgh, purchased at the roup, and subsequently by private bargain, a large number of these superiorities, and among others the superiority of certain lands which belonged to Colonel Alexander. Negotiations were thereafter entered into between Lee and Alexander for the purchase by the latter of the superiorities which affected his lands (not including the superiority of those portions which had been sold to the Glasgow and South-Western Railway Company), and the price agreed upon was £1750. Some doubt also arose as to whether the superiority of the lands of Mossward and others was includedin the purchase, and Lee then offered to sell the superiority of Mossward for £30, provided he was allowed to retain the superiority of the lands sold by Alexander or his predecessors to the railway company. The offer, which was by missive letter dated 13th October 1879, was duly accepted, and is quoted and referred to in the opinion of the Lord President.

By disposition dated 12th, 19th, and 26th Dec. 1879, granted by R. Mackie and A. Dunlop, commissioners for the Loudoun family, in favour of Lee, the superiorities which he had purchased were conveyed to him. Some doubt having arisen as to whether a portion of the lands conveyed to the railway company in 1851 was held of the Earls of Loudoun or of Colonel Alexander, the latter was made a party to the disposition, and the following clause was inserted therein—“And whereas the dominium directum or superiority of the lands of Mossgavil, Lochbroom, and others, of which some portions of the subjects hereinafter disponed form or may be held to form parts, belong to and is vested in me the said Claud Alexander.” In this disposition reference was made in the following terms to the agreement which had been entered into between Mr Lee and Colonel Alexander:—“In consideration of the sum of £100 now paid to us … as commissioners aforesaid, by the said J. B. W. Lee further on account of the price of said subjects purchased by him from us, as said is, and of the agreement made by me, the said Claud Alexander, with the said J. B. W. Lee, for the purchase of the said superiorities.”.. The subjects conveyed in the fifth place by the said disposition were as follows:—“All other lands and others in the county of Ayr, parts of the said estate of Ballochmyle and others, which belonged to me, the said Claud Alexander, and my predecessors, and have been disponed by me or them to the said Glasgow and South-Western Railway Company.” By the disposition it was declared that it did and should “convey the dominium directum only of the said lands and others as disponed to the said Glasgow and South-Western Railway Company, together with the whole right, title, and interest, present and future, of him the said Claud Alexander, in the dominium directum of the lands and others above disponed, with entry as at the term of Whitsunday 1878.” A dispute arose between the parties as to whether under this general conveyance was conveyed the superiority of the acre of ground feued by Colonel Alexander on 1st April 1878 to the railway company, Colonel Alexander maintaining that this superiority was not intended to be, and was not, included in the conveyance. The present action of declarator was raised by Lee, on the 18th February 1881, against the Glasgow and South-Western Railway Company and Colonel Alexander, concluding “that it should be found and declared that he had now the only good and undoubted right and title to the superiority or dominium directum, and all other rights which belonged to the said Claud Alexander” in that piece of land at the date of the disposition of 1879, when, according to the pursuer's contention, they were sold to him, “which piece of land and others before described are part and portion of all and whole the lands and tenandry of Ballochmyle and others in the county of Ayr.”

The defender Alexander pleaded, inter alia:—“(1) The pursuer not being proprietor of the superiority estate in question, has no title to sue the present action. (4) On a sound construction of the disposition libelled, and separatim of the said disposition and relative missive letters narrated therein, the pursuer was only entitled to retain or to have conveyed to him the superiority of subjects which had been held of the Earls of Loudoun, and which had been sold to the railway company, and as the subjects in question are not of that character the defender should be assoilzied.”

The railway company pleaded—“(1) The pursuer's right to the said feu-duty being in dispute, and the defenders being ready and willing to pay the same to the party who shall be found entitled thereto, the pursuer is not entitled to decree against the defenders.”

By interlocutor of 15th February 1881 the Lord Ordinary of consent sisted further procedure against the defenders the Glasgow and South-Western Railway Company.

By interlocutor of 15th June 1881 the Lord Ordinary ( Curriehill), before answer allowed the parties a proof of their averments as to whether the lands in question were part of the lands and tenandry of Ballochmyle. From this proof it appeared that there was considerable difference of opinion as to whether the portion of ground feued to the railway company was part of the lands of Ballochmyle, or whether it was part of the lands of Welton

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which were held under Mr Campbell of Catrine. No documents of a conclusive character were produced, and the evidence was chiefly that of aged persons who had resided long in the district, and spoke of what was currently understood in the neighbourhood.

On the 21st March 1882 the Lord Ordinary ( M'Laren) pronounced this interlocutor:—“Finds that the superiority of the subjects described in the summons is within the general conveyance contained in the deed of disposition by Robert Mackie and others and the defender in favour of the pursuer, dated in December 1879, and therefore decerns in favour of the pursuer, in terms of the conclusions of the summons: Finds him entitled to expenses as against the defender Claud Alexander,” &c.

Note.—“In this case the question in issue is, whether the superiority of the lands described in the summons was conveyed under a general conveyance in the deed referred to, of ‘all other lands and others in the county of Ayr, parts of said estate of Ballochmyle and others, which belonged to me, the said Claud Alexander, and my predecessors, and have been disponed by me or them to the said Glasgow and South-Western Railway Company.’ A proof on the identification of the lands was allowed by the Lord Ordinary ( Curiehill) and in view of the statements on record I do not think that inquiry could have been avoided; but after considering the result of that inquiry, as shown in the proof and documents, I have come to the conclusion that the general words on which the pursuer founds are clearly descriptive of or applicable to any lands disponed by the defender Colonel Alexander to the Glasgow and South-Western Railway Company, and that their generality cannot be controlled by evidence tending to show that the lands in question were not originally part of the estate of Ballochmyle. In order to make my meaning clear, it is necessary to state that before the question arose Mr Lee, the pursuer, had acquired by purchase from Mr Mackie and Mr Dunlop, factors and commissioners for the representatives of the Hastings family, the superiority of various lands in the county of Ayr which belonged to the members of that family, including the superiority of Colonel Alexander's estate. By agreement between the pursuer and Colonel Alexander, the latter acquired, for the sum of £1780, the superiority of his own estate, so far as Mr Lee had acquired right to it, but on the condition, as expressed in the narrative of the disposition of December 1879, ‘that the said J. B. W. Lee was to be allowed to retain, or was to have conveyed to him, the superiority of all the subjects and lands which had belonged to me the said Claud Alexander, or my predecessors, and had been sold by them to the Glasgow and South-Western Railway Company.’

“In pursuance of this agreement Mr Mackie and Mr Dunlop were to convey to Colonel Alexander, with Mr Lee's consent, the dominium directum of the lands of Ballochmyle so far as held of the Hastings family; and Mr Mackie and Mr Dunlop, along with Colonel Alexander, were to convey to Mr Lee, for their respective rights and interests, the dominium directum of so much of the lands of Ballochmyle and others as were vested in property in the Glasgow and South-Western Railway Company. Apparently the principle or scheme of division was that Colonel Alexander wished to hold his own lands direct of the Crown, but did not wish to be the proprietor of mere superiorities, and therefore was willing that Mr Lee should be the superior of lands conveyed to the railway company. Such, I think, is the conclusion to be drawn from the narrative of the deed. In the dispositive clause Mr Mackie and Mr Dunlop, together with Colonel Alexander, are made joint disponers, the reason being apparently that there were certain subjects of which it was not quite certain whether the superiority belonged to the Hastings family or to Colonel Alexander. As the right certainly belonged to one or other of them, a conveyance by both for their respective rights and interests was obviously the best way of giving a title to Mr Lee. The dispositive clause enumerates the four subjects, which are described by locality and measurement, and also conveys (Fifth) ‘All other lands or others in the county of Ayr, parts of said estates of Ballochmyle and others, which belonged to me, the said Claud Alexander, and my predecessors, and have been disponed by me or them to the said Glasgow and South-Western Railway Company, but declaring that these presents do and shall convey the dominium directum only of the said lands and others,’ &c. The subjects in dispute consist of a piece of land feued by Colonel Alexander to the railway company for the purpose of forming a reservoir, with a servitude of aqueduct thence to the railway line. It is contended by the defender that the site of the reservoir, although his property, does not form part of the old Ballochmyle estate, but is within the boundaries of the property of Welton, acquired by his family in the latter part of last century from Professor Dugald Stewart. He contends that, according to the tenor of his agreement with Mr Lee nothing was to be retained by or conveyed to Mr Lee except portions of the Ballochmyle superiorities which Mr Lee had acquired from the Hastings family. According to the evidence, I am disposed to think that the reservoir is part of the Welton property, held formerly of the Stewart family, and now of Mr Campbell of Catrine. But I do not consider it necessary to express a final opinion on that question, because I am unable to find in the disposition of December 1879 any such ambiguity or any such evidence of intention to restrict the generality of the words of conveyance as would justify the letting in of extrinsic evidence to explain or limit the grant. I am not satisfied that the disposition to Mr Lee was to be confined absolutely to superiorities acquired from the Hastings family. There are various considerations adverse to this reading of the contract—(1) If the Hastings superiorities only were in view, it was not necessary that Colonel Alexander should be a party to the disposition. The Hastings superiorities were not vested in him, and it was only necessary to recite the agreement between him and Mr Lee, or at most to make Colonel Alexander a consenting party in respect of the antecedent agreement. (2) But further, it clearly appears from the narrative clause of the deed that there were certain superiorities pertaining to Colonel Alexander himself which did or might be held to extend to the railway subjects. These are referred to as the superiority of the lands of Mossgavil, Lochbroom, and others. The words ‘and others’ occurring in a contract relating to superiorities of undefined

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tenure and extent are so vague and general as really to justify the inclusion of any small superiority which the granter has power to dispone, and which fulfils the limiting condition of being the superiority of subjects sold to the railway company. Further, it does not appear that Colonel Alexander meant that his part of the conveyance should be limited to the superiorities described as Mossgavil and Lochbroom, if, as I understand, these superiorities are intermixed with those of the Hastings family. It rather appears that the limit he had in view was that the superiorities conveyed should be co-extensive with the dominium utile of lands conveyed to the Glasgow and South-Western Railway Company. (3) In this connection the words ‘which have been disponed by me or them’ are important. It is in evidence that there are no other superiorities to which the general conveyance can apply except the reservoir; all the other lands conveyed by Colonel Alexander and his predecessors to the company being enumerated under heads 1, 2, 3, and 4. If, therefore, it was not intended that Mr Lee should become superior of the reservoir, it is unfortunate that the parties should have introduced into their deed a general conveyance which can have no other meaning or effect than that of the inclusion of the superiority of the reservoir. Even if there had been other subjects not specially described, but answering to the description of lands conveyed by the defender to the railway company, I should have difficulty in giving effect to evidence intended to exclude the reservoir. But as there are no other subjects, or at least none have been pointed out to which the general conveyance can apply, I have come to a clear opinion on the case.

“The defender desired that his right to challenge this construction of the deed on the ground of essential error should be reserved. I do not think that the question of essential error can be dealt with in this action, and I have therefore given decree without qualification. But it will be open to the defender to raise the question of essential error by action of reduction, if so advised.”

The defender reclaimed.

Authorities—Bell's Princ., sec. 676; Buttery, 3 L.R., App. Ca. 554.

At advising—