Scottish Court of Session Decisions

In the village of Blackburn, Linlithgowshire, there were two adjacent feus, the eastmost of which had been feued out to William Caldwell in 1795, and the westmost of which had been feued out to William Kelly in 1803.

These feus continued to be separately owned and occupied for more than forty years, and in the year 1875 they were both bought by Thomas Robinson Johnstone.

In February 1880 Johnstone sold by public roup the eastmost or Caldwell's feu to Lawrence Balderston. In the articles and conditions of roup the description of the subjects was this—“All and haill that part or portion of land with the houses thereon in the village of Blackburn, bounded on the south by the Edinburgh and Glasgow road, on the west by the feu sometime ago granted to David Mitchell, on the north by the lands sometime belonging to the said William Honyman, and on the east by the feu now or formerly belonging to David Brownlee, lying in the parish of Livingstone and sheriffdom of Linlithgow.” There was also this marginal note—“House and large garden occupied by William Hannah.” The description in the disposition in favour of Balderston, which was dated 4th and recorded 11th February 1880, was the same as that in the articles of roup without the marginal note. The description was also the same as that in the original feu granted to Caldwell in 1795, except that in the original grant the western boundary was described as “the feu recently granted to David Mitchell.” There was no trace of any grant to David Mitchell ever having been feudalised. By disposition, dated 27th and 30th May and recorded 5th June 1885, Balderston conveyed these subjects to John Ross.

In February 1880 Johnstone also sold the west-most or Kelly's feu by public roup to William Martin. In the articles of roup the description of the subjects was—“All and haill that part or portion of land feued out to William Kelly, merchant in Glasgow, by William Honyman, Esquire, of Græmsay, bounded on the east by the house and garden now or formerly belonging to William Caldwell, on the south by the Edinburgh and Glasgow road, and on the west and north by the lands sometime occupied by David Prentice, extending per measurement to twenty-two falls and nine ells of land, all lying within the barony of Blackburn, parish of Livingstone and sheriffdom of Linlithgow.” There was also this marginal note—“Three houses near Millgate occupied by M. Finn and others.” The description in the disposition to Martin, dated 26th and 28th February, and recorded 2nd March 1880, was the same as that in the articles of roup without the marginal note, but with this addition—“Together with the buildings and erections on the said part or portion of land, and all my right, title, and interest therein.” This description without the addition and marginal note was the same as the description in the original feu granted to Kelly in 1803.

This was an action at the instance of James Ross against William Martin for declarator that a piece of ground extending to 11 poles 20 yards or thereby, delineated on a plan produced, was part of the piece of ground conveyed to the pursuer by the disposition in his favour from Lawrence Balderston, that it pertained heritably to the pursuer in virtue of his rights and titles, and that the defender had no right or interest therein. There was also a conclusion for removing.

The ground in question was occupied at the date of the action by a house marked C on the plan, and a garden, with a shed or building, used

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as a joiner's shop, attached to the house.

The pursuer pleaded—“(1) The pursuer being by virtue of his titles heritable proprietor of the subjects in question, is entitled to decree of declarator and removing as asked.”

The defender pleaded—“(3) Under the titles, including the articles referred to, the claim of the pursuer is unfounded, and the defender should be accordingly assoilzied. (4) The pursuer not having been a bona fide purchaser of the subjects described in the summons, he is not entitled to decree as concluded for, and the defender is entitled to absolvitor.”

Proof was led with regard to the possession of the subjects, the import of which appears from the opinions of the Lord Ordinary and Lord Rutherfurd Clark.

The Lord Ordinary pronounced this interlocutor on 18th April 1887—“Assoilzies the defender from the conclusions of the action, and decerns: Finds the defender entitled to expenses: Allows an account thereof to be lodged, &.

“ Opinion.—There can be no doubt upon the evidence that the subjects in question form part of a property which was purchased by the defender in 1880 from Mr Robinson Johnstone, the common author of the parties, and which he has possessed ever since under the title given to him by Mr Johnstone in implement of the contract of purchase and sale. If the question had arisen between him and the seller there could have been no difficulty in sustaining the defender's right. But the subject in which the defender is infeft is described in the disposition in his favour as the portion of land ‘feued out to William Kelly, merchant in Glasgow, by William Honeyman of Grremsay, bounded on the east by the house and garden now or formerly belonging to William Caldwell, on the south by the Edinburgh and Glasgow road, and on the west and north by the lands sometime occupied by David Prentice, extending per measurement to 22 falls and 9 ells of land.’ The pursuer alleges that he has acquired the property originally feued out by the common superior, Honeyman of Græmsay, to William Caldwell in 1795, and that that feu has been shown to have included the piece of ground described in the conclusions of the summons. He therefore maintains that whatever may have been the defender's bargain with Mr Johnstone, and whatever possession may have followed upon it, the defender can have no right in the disputed ground available against him, because the description of the subject as the ground feued out to Kelly, and the boundary by ‘the house and garden belonging to William Caldwell,’ effectually exclude the disponee from any part of the ground originally included in Caldwell's feu.

If the feus granted to Caldwell and William Kelly respectively had been separately possessed from the date of the original feu-right, and the question between the parties had depended exclusively upon the identification of the original feus, the pursuer must probably have prevailed. But for many years before the defender's purchase both feus had belonged in property to one proprietor, and the question is, what part of the property then belonging to him, the common author, Mr Johnstone sold and conveyed to the defender, and what part to the pursuer's immediate, predecessor Mr Balderston?

The piece of ground in dispute is occupied by a house and garden, with a shed or building, which is spoken of in the proof as a joiner's shop attached to the house. There can be no question that this house with the joiner's shop was part of the subject purchased by the defender, or that it was intended to be included in his title. He bought three houses, and if the pursuer's construction of his title is right he will only have two. But a few days before the sale to the defender, the common author Mr Johnstone sold to the pursuer's predecessor Balderston the subjects which the pursuer acquired in 1885. Upon his purchase being completed the defender entered upon possession of the property which he understood that he had acquired, including the house and joiner's shop in dispute, and he has continued in the undisturbed possession of the whole until the present claim was advanced by the pursuer. Mr Balderston entered on possession of the adjoining property, and asserted no right to the eastmost of the defender's three houses or to the joiner's shop. The pursuer frankly admits that when he made his purchase from Mr Balderston he was perfectly well aware that the defender was in possession, and was reputed proprietor of the house and garden now in dispute. His case therefore is based exclusively on a strict construction of the titles.

The description in the defender's title requires to be explained by evidence, because what is meant by the feu granted to Kelly, or by the house formerly belonging to Caldwell, cannot be known without evidence as to the history of the possession. The result of the evidence appears to me to be that the ground of which he is now in posession coincides in part, but in part only, with the feu granted to Kelly. There appears to have been a small piece of ground included in the original feu to the west of the defender's property, and to which he asserts no right, and I think it probable that the disputed ground on the east was not originally in Kelly's but in Caldwell's feu. But then the extent of the ground conveyed to the defender is specified in the conveyance as 22 falls and 9 ells of land per measurement, and that is within 2 ells of the extent of the ground of which he is now in possession. The defender therefore will lose about half of the extent of ground specified in his title if he is deprived of the ground now claimed by the pursuer. In these circumstances I think the reference to Kelly's feu must be regarded as demonstrative, and not as taxative. There is no question about any of the boundaries except the boundary on the east. But it is to be observed that the eastern boundary is not ‘Caldwell's feu,’ but the ‘house and garden formerly belonging to Caldwell,’ and that is a description which will be satisfied by the boundary claimed by the defender, because the pursuer's house and garden which lie immediately to the east of the disputed ground did at one time belong to Caldwell. There is thus a description of a piece of ground by specific measurement within boundaries of which one alone is ambiguous. If the ambiguous boundary be construed in one way it will satisfy the measurement; if it be construed in the other way it will diminish the property to a very material extent. The larger measurement is in accordance with the possession which has followed

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upon the title, and it is in accordance also with the evidence as to the extent of the ground embraced in the contract of sale to which the title was intended to give effect. I think it would be inconsistent with sound principles of construction to allow the description by measurement to be overruled by the reference to the original feu. Nor does it appear to me that the description by measurement will be satisfied by including portions of the old feu, to which' the defender has admittedly no right, in order to restore the quantity of ground which will be cut off by the pursuer's claim. The measurement given in the defender's title must be taken to mean the measurement of the ground actually conveyed.

There might have been greater difficulty if the pursuer could have alleged that the ground in dispute was clearly within his title, and that he had bought on the faith of the record. But neither of these points can be maintained. His boundary on the west is described as the feu granted to David Mitchell, and it is admitted that no trace of a feu-right to David Mitchell has been recovered. But he did not purchase in reliance upon any description in the titles, but upon his general knowledge of the ground, and he admits that he never supposed that he was buying the defender's eastmost house, which forms the most important part of the subject he now claims, but only the joiner's shop. The witness Young, who acted as the pursuer's agent in making the purchase, knew that the defender was in possession of the joiner's shop. But whatever doubt the pursuer may have had as to the joiner's shop, he had none as to the defender's property in the house. He claims the house, to which he admits that he has no just right, because he has been advised that the construction of the titles, upon which alone he can make good his claim to the joiner's shop, must either be pressed so far as to include the house also, or must be admitted to be untenable. It follows that the construction to which he asks that effect should be given is inconsistent with the admitted rights of parties.”

The pursuer reclaimed.

Authorities— Reid v. M'Coll, October 25,1879, 7 R. 84; Stodart v. Dalzell, December 16, 1876, 4 R. 236; Lee v. Alexander, August 3, 1883, 10 R. (H. of L.) 91; Petrie v. Forsyth and Another, December 16, 1874, 2 R. 214.

At advising—