Scottish Court of Session Decisions

In 1792 certain subjects in Glasgow were acquired by James M'Lehose and John Gardner, the then deacon-convener and collector respectively of the Trades’ House, Glasgow. The title thereto was taken in favour of these persons in their official capacities as deacon-convener and collector, and their successors in office, in trust for the use and behoof of the said Trades’ House of Glasgow, and of the said incorporations composing the same, in proportion to the several sums which each of these incorporations and communities had then advanced, or should thereafter advance to the said Trades' House, towards payment of the said price, and the expense of the building of the hall then proposed to be erected on the ground.

Shortly after the purchase had been effected a hall for the use and accommodation of the various incorporations composing the Trades' House was erected on the subjects, the cumulo cost of the site and of erecting the hall being £13,884, 4s. 11d. This sum was contributed in various proportions by the incorporations following, viz.—the hammermen, tailors, cordiners, maltmen, weavers, bakers, skinners, wrights, coopers, fleshers, masons, gardeners, barbers, and bonnet makers and dyers, all of Glasgow.

This was an action of division and sale of the said subjects usually known as the Trades' House, at the instance of Hugh Kennedy as deacon-convener of the trades of Glasgow, and James Thomson Tullis, as collector of the Trades' House of Glasgow, who were in their official capacities feudally vested in the subjects for behoof of the Trades' House, and of the incorporations composing the same, and eight of the fourteen corporations interested in the Trades' House against the other six corporations, who were called as defenders. The pursuers set forth in the condescendence the various sums which had been contributed by the incorporations towards the payment of the price of the site, and of the cost of erecting the hall, and stated that they were desirous that the subjects should be sold, and that the price should be divided among them and the defenders according to the proportions in which they had contributed.

The pursuers pleaded—“(1)The said Trades' House and incorporations specified in the summons being joint-proprietors pro indiviso of the subjects and others therein described in the summons, the pursuers are entitled to insist in the present action. (2) The said subjects being incapable of division, with due regard to the just rights and interests of parties, the pursuers are entitled to a decree of sale, as also decree relative to the disposal of the price as concluded for.”

The Lord Ordinary ( Lee) remitted to Mr Smellie, surveyor and valuator, for a report, and on obtaining his report (which stated, inter alia, that the buildings did not properly utilise the ground, which was of great value as a site for business premises, that division would not be expedient or practical, and that the subjects should rather be exposed by public roup in one lot) pronounced this interlocutor—“Appoints the pursuers to print and box to the Court the said report and the summons with this interlocutor and note, and reports the cause to the First Division of the Court.

“ Note.—The Lord Ordinary reports this cause to the Court because it appears to him to be attended with some difficulty as regards the competency.

The action is one of division and sale, and if the title of the pursuers was a simple title to a pro indiviso share of the subjects, the case would be one in which, the subjects being incapable of division, the principle of the case of Brock v. Hamilton

Page: 683↓

( 19 D. 701) would be applicable.

But the peculiarity is that the subjects appear to consist of a tenement acquired and held by the pursuers as trustees for the use and behoof of the Trades’ House of Glasgow and other incorporations as a Trades Hall. The terms of the trust (which is constituted by the title—deeds) are recited in the condescendence as follows—‘The title thereto was taken in favour of the said James M'Lehose and John Gardner, in their official capacities as deacon-convener and collector foresaid, and to their successors in office, in trust for the use and behoof of the said Trades’ House of Glasgow, and of the said incorporations composing the same, in proportion to the several sums which each of these incorporations and communities had then advanced, or should thereafter advance, to the said Trades’ House, towards payment of the said price, and the expense of the building of the hall then proposed to be erected on the ground.’ There is no allegation that the purposes of the trust have come to an end, or have become incapable of fulfilment. But it is said that the pursuers (the trustees) are now desirous ‘that the subjects should be sold, and that they and the defenders should receive payment of the shares of the price to which they are respectively entitled.’ It does not appear how or on what footing the moneys required for the purchase and construction of the premises were raised by the various incorporations, and no explanation is given of any necessity, either for selling the subjects, or for putting an end to the trust.

The Lord Ordinary is not aware of any case in which an action of sale and division has been held to be an appropriate remedy in such circumstances. The parties to the cause are not pro indiviso proprietors in the ordinary sense. They rather appear to be beneficiaries, entitled to the use of the subjects as a Trades' Hall, under a trust constituted for their benefit by the action of those who raised the funds, and who took the title in the shape in which it stands.

There are many cases in which subjects may be acquired by subscription or otherwise, and vested in trustees for purposes of a similar kind—a university hall, a chapel, or reading room, or the like, and it is new to the Lord Ordinary that any of the beneficiaries interested in such subscriptions may appeal to the Court for sale and division of the proceeds on the allegation that they are unwilling to continue in communione with the other beneficiaries.

It rather appears to him that the principle of the action of division and sale is inapplicable to such a case, unless the parties can shew that they are absolutely entitled to be free of the trust, and to have the price divided for their own behoof. This does not appear from the summons and report, and the Lord Ordinary thinks the more appropriate remedy, if a sale is to be authorised, would have been an application under the Trusts (Scotland) Act 1867. There are cases in which property held in trust for a particular use may be sold by the authority of the Court, such as Johnstone v. Magistrates of Canongate ( M. 15,112), and cases in which a sale has been held illegal ( Magistrates of Airdrie v. Smith, 12 D. 1222). But the Lord Ordinary is aware of no case in which an action of division and sale has been sustained as competent in such circumstances as those here described, at the instance of one of the trustees or beneficiaries. He is not satisfied that the pursuers can be regarded as pro indiviso proprietors of the subjects in fee-simple, and he thinks it right to explain that when the interlocutor sustaining the title was pronounced, his attention was not called to the peculiarities of the case or to the form of the title. [ His Lordship had previously in the interlocutor remitting to the valuator sustained the pursuers' title to raise and insist in the action].

In the absence of any contradictor representing the interests of all parties, who as members of the corporation may be affected by a sale and division of the proceeds as proposed, the Lord Ordinary thinks it right to report the matter to the Court in order that his difficulties, if unsubstantial, may be disposed of in a manner which will leave the title clear of all doubt.”

The pursuers argued in the Inner House that the action was competent.

At advising—