Scottish Court of Session Decisions

In 1833 Mr William Wilson of Craigrothie granted a feu-disposition of a piece of ground on Craigrothie estate, upon which had been built a school, known as the Subscription School of Craigrothie, to a body of trustees, by whom the school was managed. The reddendo was one penny Scots, and the warrandice contained in the charter was at all hands and against all mortals.

No infeftment was taken on this disposition.

The school remained under the management of trustees till 1873, when it was transferred to the School Board of the parish of Ceres, in terms of the Education (Scotland) Act of 1872. No formal conveyance, however, was taken by the School Board from the trustees, and they took no steps to have their title to the ground feudalised. The estate of Craigrothie passed by various gratuitous dispositions to disponees of the original proprietor, and in 1873 it was bought by Mr William M'Farlane. In the conveyance to him the dispositive clause did not except the piece of ground feued to the School Board's authors in 1833, but the deed contained the following clause of warrandice:—“And I grant warrandice, but excepting always from the warrandice the current tacks or leases, and all feu rights and other subaltern rights of the said lands granted by me or my predecessors or authors to the tenants, feuars, and vassals thereof, without prejudice to the right of the said William M'Farlane or his foresaids to quarrel or impugn the same upon any ground in law not inferring warrandice against me or my foresaids.”

The School Board being desirous of completing a full legal title to the ground occupied by them, called upon Mr M'Farlane to grant a charter of novodamus in their favour. He refused to grant a charter except at an annual feu-duty of £5 to be paid for the subjects, and the School Board accordingly raised an action of declarator and adjudication against Mr M'Farlane, in which they craved the Court to declare that they had the full right and title to the subjects. The defender maintained that the pursuers had no legal title capable of competing with his infeftment as a singular successor.

The Lord Ordinary ( Low) on 14th November assoilzied the defender.

Note.—“The defender William M'Farlane is a purchaser of the estate upon which the pursuers’ school is built, and his title has been completed by infeftment. The pursuers’ title, on the other hand, is an unfeudalised feu-disposition granted so long ago as 1833.

It is not said that the defender had any notice of the pursuers' right, or that he even knew of the existence of the school. Prima fade, therefore, it is a case to which the general rule that a singular successor takes the lands free from the personal obligations of his predecessor, and unaffected by burdens not appearing upon the records, applies.

The pursuers' argument was mainly founded upon the terms of the clause of warrandice.

That clause excepts from the disposition, leases, and feu-rights, but gives liberty to the defender to challenge leases or feu-rights on any ground not inferring warrandice against the disponer.

The argument of the pursuers was that the defender could not challenge their right, because to do so would infer warrandice against his author.

It may be doubted whether the pursuers have a title to state that argument, because they were not parties to the disposition, nor in any way privy to the contract between the defender and his author. But apart from that, it seems to me that a challenge of the pursuers' title on the part of the defender would not infer warrandice against the disponer. The pursuers' title is challengeable not on account of any defect in the disponer's title, or anything which he has done, but simply because the pursuers, or those in whose right they are, neglected to put their title upon record. In such a case I do not think that there could be any recourse under the clause of warrandice in the feu-disposition, because the defect in the title is entirely attributable to the grantees.

The pursuers relied upon the case of Wight v. Earl of Hopetoun, M. 10,461. In that case, however, the ground of judgment was that Lord Hopetoun was barred personali exceptione from challenging the perpetual lease which was in question, it being expressly excepted in the clause of warrandice in the disposition. It appears to me that that decision has no application here, because there is no express mention of the pursuers' feu-right in the disposition, and, as I have said, it is not alleged that the defender had any notice of the existence of any right on the pursuers' part, or even knew of the existence of the school.

I may add that I do not think that the pursuers derive any aid from the provisions of the Education Act 1872. Section 38 provides for the transference of schools in the position of that in question to the School Board. It is there enacted that the persons vested with the title to any such school,’ may transfer ‘such school, together with the site thereof, and any land or teacher's house held and used in connection therewith to the School Board,’ and if the School Board, with the sanction of the Board of Education, accept such transference, ‘the school with the site, and any land or teacher's house included in the transference, shall be vested in the School Board.’ By the 39th section it is provided that the transference may be effected by an ordinary disposition or other deed of conveyance

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by the persons vested with the title, recorded in the Register of Sasines.

If, as in this case, the trustees of a subscription school have only a personal title, I do not think that a transference carried out under the 38th section gives to the School Board any better title than that of the trustees. I think that they only acquire right to the title as it stands in the person of the trustees. Further, the 39th section points out the way in which the School Board may complete their title. It is to be by an ordinary disposition by the persons vested in the title. If the School Board had taken a disposition from the trustees in 1873, when the transference is said to have been made, and put it upon record, there would have been no question; but, as they neglected to do so, I am of opinion that they are in no better position than the trustees would have been in if the transference had not been made, and that their sole title, in a question with the defender, is the unfeudalised feu-disposition of 1833, of which the defender is not said to have had any knowledge or notice.

I am therefore of opinion that the pursuers are not entitled to the decree which they seek.”

The pursuers reclaimed, and argued—(1) The defender took over his estate subject to the limitation that he should not impugn any “feu rights.” The reclaimers' right, though not feudalised, was included in this designation. It was the duty of a purchaser to carry out all the obligations prestable on the estate he acquired— Wight v. Earl of Hopetoun, M. 10, 461. (2) Section 38 of the 1872 Act vested a right in the School Board, personal, it was true, but absolute. By the 39th section there vested in them a beneficial right, and as soon as the transaction was completed they might have demanded a title from the proprietor. Accordingly there was no reason why they should not do so now. There was no duty on them to do this, though it would have been more prudent to do so; and they had not forfeited their right by their neglect.

Argued for respondent—(1) This was merely a case of competing titles, in which the pursuers set up an unfeudalised personal right against an infeft singular successor. The original proprietor did not and could not warrant his disponees against their own fault in neglecting to get infeftment. (2) The Education Act did not help the pursuers, unless it could be shown that the effect of the transference under it was to infeft them, and they could not maintain that. They gained nothing more by the transference than the personal right of their authors.

At advising—