Scottish Court of Session Decisions

This was an action of proving the tenor raised by Robert Pollok and John Auld M'Taggart. The pursuers were proprietors of a piece of ground in Glasgow, their titles to which had all been lost prior to a disposition granted in 1854 by John Campbell Colquhoun and others as trustees for the Society for Erecting Additional Parochial Churches in the City and Suburbs of Glasgow, in favour of the moderator and clerk of the Presbytery of Glasgow as trustees for the parish of Springburn. Infeftment was not taken on that disposition until 1897, when a notarial instrument was executed in favour of the then trustees for the parish of Springburn, and duly recorded in the Burgh Register of Glasgow, 15th October 1897. From disponees of these trustees for the parish of Springburn Mr George Charles Chapman acquired the subjects in question in February 1898, and he entered into a contract of ground-annual with the pursuers in July 1898 whereby they became proprietors of the ground. They then raised this action against the representatives of all the parties through whose hands the lands had passed since 1842, to prove the tenor of (1) a disposition granted in 1842 by William Jones, the then proprietor of the subjects, with the consent of the trustees of the then deceased James Shepherd, in favour of John Campbell Colquhoun and others as trustees designed above, and (2) instrument of sasine following thereon.

The pursuers averred that the deeds of which they sought to prove the tenor were the titles immediately preceding the disposition by John Campbell Colquhoun and others in 1854 above referred to, and that they were therefore the foundation of a prescriptive progress of titles.

It was further averred—“(Cond. 5) The pursuers have made every endeavour to find the principals of the deeds the tenor of which is sought to be proved, but without success. They believe and aver that while in the hands of the said Society for

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Erecting Additional Parochial Churches in the City and Suburbs of Glasgow, or some members thereof, prior to 1854, they have been destroyed through carelessness, in some way which cannot now be explained.” This they alleged was apparent from an inventory of writs lodged in a process of disjunction and erection, raised by the Society for Erecting Additional Parochial Churches in or about the year 1854, in which inventory the deeds in question were marked “awanting.”

The only adminicle by which the pursuers sought to prove the tenor of the disposition and sasine was an extract from the Burgh Register of Glasgow of the sasine itself.

It was averred—“(Cond. 8) The pursuers have ascertained that the said William Jones has died since the date of said disposition and sasine, but after the fullest inquiry they have not been able to discover who, if anyone, is his heir, nor have they been able to discover the heir and representatives of the survivors of the trustees of the deceased James Shepherd, all of whom are dead.”

At a proof before a commissioner the entry in the inventory of the teind process was proved.

In addition to this, George William Black, writer, Glasgow, deponed—“I was appointed clerk to the heritors of Spring-burn in 1897. I examined their titles with a view of feuiug a portion of the superfluous ground adjacent to Springburn Church. Before my appointment there was no clerk to the heritors. There was no minute-book in existence, and no titles in the possession of the minister. I inquired at the Teind Office as to the disposition and instrument of sasine mentioned in the summons, but could find no trace of them. I called at the Teind Office because I knew of the existence of a process of disjunction and erection of Springburn Parish. The disposition and sasine set forth in the summons were marked wanting in the inventory of that process. The agent in that process was Mr John Marshall, S.S.C. I caused inquiries to be made at the office of his successor, Mr J. B. M'Intosh, S.S.C., in regard to the deeds, but without result. I have no other means of tracing these documents, and I believe they have been lost.” The only evidence adduced as to pursuers' inability to discover the representatives of the granters of the disposition was. that of Mr George Charles Chapman, writer, Glasgow, who said—“I have made inquiry as to the representatives of the late William Jones and the trustees of the late James Shepherd, but without success. I called on Dr Hill, partner of the firm of Hill & Hoggan, writers, a firm which has been in existence in Glasgow for the last hundred years. Dr Hill acts for the Faculty of Physicians and Surgeons of Glasgow, and for the trustees of the widows' fund in connection with that body, who at one time held the ground-annual over the ground. He was unable to give me any information except that he had endeavoured to trace the trustees, but without effect. The agents who acted for the trustees were James Bogle, and for Jones, Richard Hall. They have long since died. I also called on Messrs Black, Honeyman & Monteith, writers, Glasgow, who act for the heritors of the Springburn Parish. They also were unable to trace Jones' representatives or Shepherd's trustees.”

Argued for the pursuer—A disposition not being a document which was cancelled by destruction, its loss might be proved to have occurred in any way—Dickson on Evidence, 1338. The proof established a sufficient casus amissionis; and the pursuer had done everything that was possible to discover the granters of the deed; and the sasine having entered the record, decree should be granted— Kerr v. Hay, July 3, 1830, 8 Shaw, 1008; Incorporation of Skinners and Furriers v. Baxter's Heir, March 17, 1897, 24 R. 744.