Scottish Court of Session Decisions

This was a petition by the Earl of Eglinton and Winton, heir of entail in possession of, inter alia, the lands and lordship of Ardrossan and of other lands lying in the shires of Ayr, Lanark, Renfrew, and Bute, for authority to sell the harbour of Ardrossan. The petition was brought under the Entail Amendment (Scotland) Act 1848 (11 and 12 Vict. c. 36), sec. 25, and the Entail (Scotland) Act 1882 (45 and 46 Vict. c. 53), secs. 19 to 25.

The petitioner was of full age, and service on the three nearest heirs of entail entitled to succeed to the foresaid lands and estates, all of whom were of full age and not subject to any legal incapacity was made.

The petitioner stated that his entailed lands and estates were burdened with debt, amounting in whole to upwards of £124,000 conform to schedule produced. In these circumstances the petitioner alleged that he was desirous of availing himself of the provisions in the foresaid Entail Acts authorising the sale of an entailed estate, or part thereof, and of obtaining authority to sell the harbour of Ardrossan, with the docks and other works and appurtenances thereof and thereto belonging, with the powers, rights, and privileges, and with and under the conditions contained in the several Acts relating thereto, all in so far as applicable, with the rates and duties exigible thereat, and of applying the price to be obtained therefor in payment pro tanto of the said debts affecting said lands and estates. He further stated that he believed that it would be for the interest and benefit of himself and the heirs of entail to sell the harbour, and that it should be sold by private bargain.

The prayer of the petition contained, inter alia, the following clause … “And upon said sale being effected, to authorise the petitioner to execute and grant a disposition or other deed of conveyance in favour of the purchaser or purchasers, containing all usual and necessary clauses, and the clause of warrandice specified in the Entail (Scotland) Act 1882.” Section 25 of that Act provides that on payment of the price to be obtained for entailed lands sold under the Act the applicant shall grant a disposition containing all usual and necessary clauses, and, “in particular, clauses providing that the purchaser shall have warrandice against the price, so long as the same shall remain extant, deposited or invested as aforesaid [sec. 23], and binding the applicant and his heirs of provision in warrandice to the extent of the shares of the price received by them respectively in the event of the price being disentailed and divided among the applicant and his heirs of provision, according to their respective interests therein.”

The Lord Ordinary, after intimation and advertisement, and a report from Mr Wright, W. S., granted an order of sale “with and under the conditions contained in the several Acts relating to the said harbour, docks, and other works authorised to be sold, in so far as applicable.” After the order had been granted a minute was lodged by the Glasgow and South-Western Railway Company, in which it was stated that the company did not propose to oppose the petition, but desired that the Court in granting the prayer thereof should make provision for the preservation of valuable rights and interests which they had acquired in connection with Ardrossan harbour under certain agreements with the petitioner and his predecessors made under authority of certain Acts of Parliament, particularly 5 Vict. c. 62, and 27 and 28 Vict. c. 308.

The minuters alleged that in reliance on these agreements they had laid down lines of railway, erected sheds, and constructed works on the subjects proposed to be sold.

They also alleged that the obligations undertaken by the petitioner and his predecessors were obligations affecting the entailed lands in question, and were binding on all heirs of entail in possession; that there was no provision in the Acts for the said agreements being obligatory on purchasers of the said harbour; and that it was reasonable that in the event of the harbour being sold that it should be sold under reservation and burden of the said obligations.

The company accordingly moved the Court not to grant the prayer of the petition except on the condition that in the disposition or deed of conveyance appropriate clauses were inserted to secure—“(1) That the said agreements be made binding on the purchaser or purchasers of the said harbour and others mentioned in the prayer of the petition. (2) That the said agreements be made binding on all subsequent disponees of the said harbour and others, and that by the obligations in favour of the compearers therein contained being validly constituted real burdens on the said harbour and others. (3) That in the present and all subsequent deeds of conveyance the clause of disposition of Ardrossan harbour, or the parts and pertinents thereof, shall not include the lines of railway and other subjects declared by the said agreements to be and remain the property

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of the said Glasgow and South-Western Railway Company.”

The chief agreements were dated in 1854 and 1866. The former provided by clauses 1 and 3 that certain lines of railway, shown on a plan thereto annexed, were the property of the predecessors of the company; by clauses 2 and 4, that the solum thereof belonged to the Earl, and that he might in certain circumstances use the railway. The other clauses, so far as they need be referred to, provided that the company might build additional sheds on the Earl's ground at their own expense, and that he should not charge for the ground.

The agreement of 1866 confirmed that of 1854.

The Lord Ordinary allowed the minute to be received, but reserved all questions as to its competency, and again remitted to Mr Wright, W. S., to inquire into the statements contained in the minute for the Glasgow and South-Western Railway Company.

Mr Wright reported—“(1) That the application by the compearers in its present form at this stage is incompetent. (2) That, apart from the question of form, it would not be competent or practicable to make the conditions and obligations contained in the agreements real burdens upon the petitioner's lands. (3) That even if the obligations in their nature were capable of being made real burdens, the parties themselves not having made them so, or come under obligation to do this, the Court will not increase the obligations by making them more stringent or binding than the parties have done. (4) It is not necessary in this process to determine whether the compearers' title and possession are sufficient to protect them from challenge by a singular successor of the petitioner, but it is evident that their possession does not rest solely upon the agreements now founded on.”

By interlocutor of 11th July 1884 the Lord Ordinary refused the craving of the Glasgow and South-Western Railway Company.

“ Opinion.—I do not think it incompetent for the Court to entertain the railway company's application notwithstanding that an order of sale has been already granted. But I think that the company have shewn no sufficient ground for qualifying the order by any further conditions. No such qualification is required in order to protect from a sale by the petitioner lines of railway which, although they are laid down upon his ground, do not belong to him, but are declared by the agreements under which they are laid down to be the property of the railway company. If the company has already acquired any real right in the subjects which it is proposed to sell, such right will remain effectual notwithstanding a sale. If they have no such right, they cannot acquire it under these proceedings. Provision may be made for charges which already affect, or which may be made to affect, the land; but the Court has no power to convert into real burdens rights which the parties have left by their contract to stand upon personal obligation.”

The Railway Company reclaimed, and argued —All that was desired by the company was that they should be put in no worse position by the sale of the lands than they were at the present time. The arguments entered into were good against the entailed estate, and good therefore against the heirs of entail. These rights were indefeasible, and what was desired was that they should be made real burdens upon the land.

Replied for the petitioner—To comply with the railway company's proposal and make the obligations in their favour real burdens on the land would put the heir in possession in a very much worse position than he was at present. If the company had demanded at the time the agreements were made that they should be made real burdens upon the land, the petitioner or his predecessors would have secured some additional benefit. The petitioner was prepared to implement the agreement as it stood, but he objected to the company securing any additional benefit. Both the agreements were made after the Rutherfurd Act, and the parties might therefore reasonably have contemplated the termination of the entail.

Draft clauses to be inserted in the articles of roup and disposition of Ardrossan Harbour were lodged both by the Earl of Eglinton and the Glasgow and South-Western Railway Company.

The following clauses (adopting the clauses proposed by the company, subject to the qualifition mentioned by the Lord President) were adjusted by the Court:—

The Disposition to he granted in favour of the Purchaser shall contain, inter alia, Clauses in the terms after mentioned, viz. (1) after the Dispositive Clause, a Clause in the following terms:—“Excepting always from the harbour, lands, and other subjects and pertinents thereof hereby conveyed, the whole lines of rails, with the relative switches and crossings, formed upon the harbour of Ardrossan, and lying between the said harbour and the east side of Princes Street, Ardrossan, including the lines of rails which are situated alongside of the docks and quays which belong to the Glasgow and South-Western Railway Company, all as delineated and coloured red upon duplicate plans signed as relative to the agreement first hereinafter specified; and all alterations upon or additions to the said lines of rails, switches, and crossings, which have been or may be made by the Glasgow and South-Western Railway Company in virtue of the provisions of the agreements first and second hereinafter specified: All which excepted subjects are hereby declared to be and to remain the property of the Glasgow and South-Western Railway Company, and their successors, notwithstanding anything herein contained, and shall be maintained in good order and repair by the Glasgow and South-Western Railway Company at their sole expense in all time coming: But declaring that the solum on which the said lines of rails, switches, and crossings are laid, as also the branch lines leading into the ballast discharging berths, are not excepted from but are included in the subject hereby conveyed: And declaring always that these presents are granted with and under and subject to the whole conditions, provisions, restrictions, limitations, obligations, reserved powers, and rights, so far as conceived in favour of the Ardrossan Railway Company or the Glasgow and South-Western Railway Company, in so far as still subsisting, specified in—( First), An agreement entered into between the Right Honourable the Earl of Eglinton and Winton, now deceased, as sole proprietor, or about to be vested as sole proprietor, of the harbour of Ardrossan, on the first part, and the Ardrossan Railway Company, with consent and concurrence of the Glasgow

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and South-Western Railway Company, for all interest they had or might acquire in the premises, on the second part, dated 5th, 6th, and 10th July 1854, and recorded in the Division of the General Register of Sasines applicable to the county of Ayr the day of 1885; and ( Second), An agreement entered into between the Right Honourable the Earl of Eglinton and Winton, now deceased, sole proprietor of the harbour of Ardrossan, on the first part, and the Glasgow and South-Western Railway Company, on the second part, dated 3d and 13th April 1866, and recorded in the said Division of the General Register of Sasines applicable to the county of Ayr the day of 1885: And the said ( disponee) and his foresaids shall be bound and obliged, as by acceptance hereof he binds and obliges himself and them, to observe, implement, and fulfil the said agreements and whole clauses therein contained, so far as undertaken by and incumbent on the said deceased Earl of Eglinton and Winton or me, or his or my heirs and successors, and to free and relieve me and my foresaids of all obligations contained in the said agreements in all time coming; and the said conditions, provisions, restrictions, limitations, obligations, reserved powers, and rights specified in the said two agreements, so far as conceived in favour of the said Ardrossan Railway Company and Glasgow and South-Western Railway Company, or either of them, and in so far as presently subsisting, are hereby directed to be inserted at length or validly referred to, in terms of law, in all subsequent conveyances, instruments, and other writs and titles of the said harbour and others thereby disponed.”

And (2) after the Clause of Assignation of Writs, a Clause in the following terms:—“I assign to the said ( disponee) and his foresaids the whole reservations, declarations, powers, and rights, conceived in favour of the said deceased Earl of Eglinton and Winton and his successors, and in favour of me and my successors, contained in—( First), The said agreement between the said Earl of Eglinton and Winton, now deceased, on the first part, and the Ardrossan Railway Company, with consent and concurrence foresaid, on the second part, dated and recorded as aforesaid; ( Second), The said agreement between the said Earl of Eglinton and Winton, now deceased, on the first part, and the Glasgow and South-Western Railway Company, on the second part, dated and recorded as aforesaid; and ( Third), Supplementary agreement between me, on the first part, and the Glasgow and South-Western Railway Company, on the second part, dated the 19th and 26th days of August 1873, together with the said two agreements and supplementary agreement themselves, whole clauses, tenor, and contents thereof, in so far as conceived in favour of the said deceased Earl of Eglinton and Winton and his successors, and of myself and my successors: Surrogating hereby and substituting the said ( disponee) and his foresaids in the full right and place of the said Earl of Eglinton and Winton, now deceased, and of myself, and his and my successors, in the said two agreements and supplementary agreement, and all that has followed or is competent to follow thereon, now and in all time coming.”

At the end of the former of these clauses, after the word “disponed,” the railway company had in their draft-clauses suggested that the words “under pain of nullity” should be inserted, and they maintained in argument that these words should be part of the clause.

At advising—