Scottish Court of Session Decisions

In May 1855 William Johnston, as trustee for William Dixon, proprietor of the lands of Crosshill, feued to James Allan about three acres of the said lands. In the feu-disposition the land was described as “bounded on the north north-east, in the first place, by the centre of a road or street which measures 50 feet in breadth,” &c. In the deed there were these clauses of restriction and obligation—“But these presents are granted and accepted, and the subjects hereby conveyed are disponed, with and under the following conditions, provisions, and obligations, viz., that the said James Allan and his foresaids shall be bound to erect upon the said piece of ground a neat dwelling-house or separate dwelling-houses or villas or cottages, which shall cost at least £300 each, exclusive of the ground; … and that I, the said William Johnston as trustee foresaid, and my foresaids, shall be bound and obliged to take the whole feuars or purchasers of the remaining portions of Crosshill lands bound in similar terms, and to insert in their feu-rights, dispositions, or other conveyances the like clauses with reference to the erection of buildings, and formation and upkeeping of the same (under the foresaid reservations as to firebrick fronts), and of the streets and sewers therein as are hereinbefore inserted, which conditions, provisions, and obligations are appointed to be inserted in the infeftment to follow hereon, and thereafter validly referred to in all future conveyances and investitures of the said plot or piece of ground.” In 1868 the trustees of James Allan, who then held the land feued in 1855, brought an action against Dixon's trustees to interdict them from feuing the lands of Crosshill without taking the feuars bound in similar terms of restriction as in Allan's feu-disposition. The Court of Session granted interdict (December 9, 1868, 7 Macph, 193), and upon appeal the House of Lords affirmed the judgment—July 12, 1870, 8 Macph. (H.L.) 182. In May 1883 William Dixon's trustees and Allan's trustees executed a mutual discharge and assignation, whereby upon the narrative of the feu-disposition granted to Allan, and that the said interdict had been granted, the parties agreed and bound themselves, inter alia—“(First) that the second party (Allan's trustees) should discharge the first party's (Dixon's trustees') constituents, and the said lands of Crosshill and others now belonging to them, of the said obligation in favour of the said James Allan imposed upon the said William Johnston and his foresaids by the said feu-disposition by him in favour of the said deceased James Allan to take the whole feuars or purchasers of the remaining portions of Crosshill lands bound in similar terms, and to insert in their feu-rights, dispositions, or other conveyances the like clauses with reference to the erection of buildings, and formation and upkeeping

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of the same and of the streets and sewers therein, as are inserted in the said feu-disposition, and that the said trustees of the said deceased William Smith Dixon and their successors in office and disponees, should be entitled to feu and dispose of all or any portion of the said lands of Crosshill without taking the feuars and purchasers thereof bound in terms of the said obligation; and (second) that in consideration thereof the first party and his constituents should discharge the second party of the obligations contained in the clauses in said feu-disposition by the said William Johnston in favour of the said James Allan with reference to the erection of buildings and formation and upkeeping of the same, and of the streets and sewers therein.”

In May 1883 Dixon's trustees feued an additional portion of the lands of Crosshill for the erection of buildings to Allan's trustees, “which buildings fronting said roads shall be suited for and shall only be occupied and used as dwelling-houses or shops and dwelling-houses as hereinafter provided.” There were also certain conditions inserted as to the class of shops and houses to be erected, showing that these were to be of the nature of workmen's houses. Allan's trustees sub-feued a portion of the ground thus feued to them to Messrs Walker & Dick, Glasgow, but they had not feudalised their title.

In May 1887 Walker & Dick presented a petition to the Dean of Guild Court of Crosshill for leave to erect five tenements of dwelling-houses and shops upon the land feued to them. Two other feuars on Crosshill estate, Moses Park and James Hamilton, appeared and objected to the lining being granted.

Hamilton's title was derived from a feu-contract granted in 1862 by William Johnston, Dixon's trustee, to William Hunter, in which there was a clause of obligation in these terms—“Declaring that the said William Johnston, as trustee foresaid, shall be bound and obliged … when he or his foresaids shall come to feu or sell the remainder of the ground belonging to them fronting the said road of 50 feet in breadth, and the ground immediately adjoining the ground hereby disponed on the north, to take the feuars or purchasers there of bound to build villas or cottages only with suitable offices thereon in all respects suitable to those to be built by the said William Hunter on the plot or area of ground hereby disponed in terms of the stipulations to that effect after written.”

In 1874 Dixon had granted a feu-contract to Moses Park of a portion of the lands of Crosshill, by which the feuar bound himself to erect two villas or cottages of a value not less than £300. There was no clause of obligation on the superior. There was a clause at the end of the feu-contract in these terms—“Declaring that the said first party (Mr Dixon) and his foresaids shall be entitled at any time at their own discretion to discharge or modify in favour of the said second party (Moses Park) or his foresaids all or any of the said burdens, reservations, conditions, provisions, declarations, obligations, and others without consent of any of the other feuars or disponees of any lands belonging to them, these presents being intended only to regulate and express the terms of the contract between the parties hereto.”

The objections stated for the compearers were that Dixon's trustees had come under an obligation to Allan's trustees to impose upon all subsequent feuars a like restriction to that in their titles as to the nature of the buildings to be erected upon their feus; that they had been interdicted at the instance of Allan's trustees from feuing, selling, or disposing of the lands of Crosshill without imposing such restrictions; that they had accordingly imposed these restrictions upon the objectors, who had taken their feus on the understanding that no houses other than villas or cottages would be erected upon these lands, and that the discharge alleged to have been granted by Allan's trustees could not affect the rights of other feuars.

They pleaded—“(4) In respect of the condition of the titles, the mutual obligations which they contain, the nature of the properties, and the relation of the various proprietors and feuars of the lands of Crosshill to one another, the objectors are entitled, on the principle of jus quæsitum tertio, to insist on the said restrictions being observed. (6) The alleged discharge founded on by the petitioners not having been concurred in by the objectors, or by all the other parties interested, is inept, and the restrictions still remain in full force and effect, and the petitioners being bound to observe the same, the lining craved ought to be refused, with expenses.”

The petitioners pleaded—“(1)The objections stated, involving as they do questions of heritable title, are incompetent in this Court. (4) The buildings proposed to be erected by the petitioners being entirely in accordance with the terms of their titles, the objections stated ought to be repelled, with expenses, and they are entitled to authority as craved. (7) All the restrictions, the observance of which the objectors are entitled by their titles or otherwise to insist upon, having been observed, and the pursuers proposed buildings not being in contravention thereof, and the objections stated being quoad ultra jus tertii of the objectors, the objections ought to be repelled, with expenses.”

Upon 15th September 1887 the Dean of Guild Court, after proof, pronounced an interlocutor in which, after findings in fact, they found in law—“(1) That the respondents Hamilton and Park, on the principle of jus quæsitum tertio, acquired a right to enforce the obligation by the superior William Johnston contained in the feu-disposition of 1855; (2) that as in a question with the respondents the mutual discharge and assignation does not discharge the said obligation, but that the same subsists and is binding on Dixon's trustees; (3) that the obligation by the superior in the feu-charter of Hamilton's feu to restrict the ground now belonging to the petitioners to villas and cottages is still subsisting and binding on Dixon's trustees, the superiors of the ground, and the respondent Hamilton, as the successor of the original feuar Hunter, has a right to enforce that obligation; (4) that in accordance with the obligation undertaken by William Johnston in the foresaid disposition, and in the feu-charter to Hunter, Dixon's trustees had no power to feu the ground belonging to the petitioners. with liberty to erect thereon tenements of flatted houses and shops, as proposed by the petitioners: Therefore refuse the prayer of the petition:

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Find the petitioners liable to the respondents Hamilton and Park in expenses.”

In pronouncing this judgment the Dean of Guild Court held, upon the proof, that the obligation undertaken by the superior in the original feu-contract of 1855 applied to the additional ground feued in 1883. It will be seen, however, from the opinions of the Judges infra that it was very doubtful whether this was the case.

The petitioners appealed, and argued—This case could not competently be dealt with in the Dean of Guild Court. The petitioners' title was quite plain, but the Dean of Guild had held that the restrictions in another feuar's title could be read into theirs. No feuar was entitled to interfere with another if that other kept within the conditions of his own feu-contract. The superior was not called in the process, and the Dean of Guild could not competently deal with matters which affected him in his absence. But even assuming that the matter could be competently dealt with, the Dean of Guild had given a wrong decision on the merits. It was true that in 1855 Dixon's trustees had come under an obligation to Allan's trustees to insert certain restrictions in the titles of subsequent feuars, and that in 1870 the House of Lords had enforced that obligation upon Dixon's trustees by interdicting them from doing otherwise. But that imposed no real burden upon the lands; it was merely a personal obligation upon Dixon's trustees. That obligation could be discharged, and had been so discharged, and another part of the lands feued to Allan's trustees without any restriction. They were therefore entitled to deal with the feu as they wished to do, and the neighbouring feuars were not entitled to interfere. If the objectors had any remedy it must be sought against the superior in another process. The objector Park had no title at all, as there was a clause at the end of his contract by which the superior was entitled to deal with the feu as he pleased. It was by no means clear on the facts that the ground which the appellants had feued was part of the ground to which the restrictions imposed in 1862 applied.— Allan's Trustees v. Dixon's Trustees, Dec. 9, 1868, 7 Macph. 193, July 12, 1870, aff. 8 Macph. (H.L.) 182, 42 Jurist 461; Hislop v. MacRitchie's Trustees, June 23, 1881, 8 R. (H.L.) 95; Thomson & Alleys v. Maclellan, &c., Dec. 22, 1882, 10 R. 433.

Argued for the respondents—This question could be competently dealt with in the Dean of Guild Court. The Dean of Guild, besides taking charge of the interests of the public, was entitled to consider the interests of neighbouring feuars. He had often dealt with cases where there was a direct conflict of heritable right— Smellie v. Thomson, July 9, 1868, 6 Maeph. 1024; Pitman, &c., v. Burnett's Trustees, July 7, 1881, 8 E. 914; Voider v. Merchant Company of Edinburgh, &c., Feb. 26, 1886, 13 E. 623. But the Dean of Guild had given a right decision upon the merits. The petitioners' title had been granted by an author not entitled to give it. The petitioners, as they had not feudalised their title, must be taken as being in the same position as Allan's trustees. Allan's trustees had brought an action to have the superior interdicted from infringing an obligation inserted in their title, and had been successful. Afterwards they had by a private arrangement with the superior discharged him from the obligation. But that was only as between the superior and themselves. The objectors had taken their feus upon the footing that that obligation still subsisted, and no private dealings with the superior could prevent them from exercising their rights, and forcing the superior to carry out the contract under which they feued the ground. It must be assumed that Allan's trustees knew that the restrictions. had been inserted in the respondents' titles. The ground now sought to be built upon came within the limits of restriction in the feu-contract of 1862.

At advising—