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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Matheson v. Gemmell [1903] ScotLR 40_385 (18 February 1903)
URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0385.html
Cite as: [1903] SLR 40_385, [1903] ScotLR 40_385
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SCOTTISH_SLR_Court_of_Session
Page: 385↓
Court of Session Inner House First Division.
[
v.
Facts:
Lands purchased at public roup were described in the seller's titles and in the articles of roup as—“All and Whole that piece of ground consisting of 2 roods 2 falls and 11
ells or thereby lying on the north side of Garngad Hill, within the territory of the burgh of Glasgow and county of Lanark, being the lands and others particularly described and disponed in the second place in the disposition granted by Mrs Jane Robertson or Willis, wife of George Willis, surgeon, Baillieston, near Glasgow, with consent of Andrew Yeats, coalmaster in Glasgow, in favour of John Gray Macfarlane, merchant in London, dated the 5th, and recorded in the Burgh Register of Sasines at Glasgow on the 7th, both days of July 1865.” No such disposition had in fact ever been granted by Mrs Willis. A disposition of 2 roods 2 falls 11 1 2 ells, situated as stated, in favour of Macfarlane, dated and recorded as specified, was granted by George Willis himself. The purchaser refused to implement the contract on the ground that the title was bad. He maintained that without the reference to the previous disposition the lands were not sufficiently identified, and that the clause of reference was not in the terms required by section 71 of the Conveyancing Act 1874 and Schedule O therein referred to, in respect that the description referred to a disposition which had no existence. 1 2 Held that a description by reference to a previous deed was competent at common law, and apart from the Conveyancing Act 1874; that the misdescription of the deed referred to was merely a falsa demonstratio; that the deed was sufficiently identified by the other particulars given; and that in the circumstances the title was such as the purchaser was bound to accept.
On 11th December 1901 certain lands were exposed by public roup by John Matheson, warehouseman in Glasgow, and were purchased by Matthew Gemmell, property agent there.
Gemmell having objected to the validity of the title offered to him, Matheson brought an action against him concluding for implement of the contract of sale, or, alternatively, for damages.
In his defences Gemmell explained that his objection to the title was that the lands were not sufficiently described or identified, the only description given being by reference to a disposition which had no existence.
The state of the title was as follows The pursuer's immediate title as heritable proprietor of said subjects consisted of—(1) a bond and disposition in security for £7000 granted by James Ritchie Monteath, writer, in Glasgow, in favour of the trustees of the deceased Archibald Russell, brickmaker, Glasgow, dated and recorded in the Burgh Register of Sasines (Glasgow) 6th July 1874 (which was afterwards discharged to the extent of £1300), with assignations of the said bond for the balance of £5700, and of the security-subjects, by the said trustees to Archibald Russell, coalmaster, Glasgow, and subsequently by said Archibald Russell to the pursuer; and (2) a decree of the Sheriff of Lanarkshire dated 17th August, and recorded in the said Burgh Register 20th December 1899, in favour of the pursuer under the Heritable Securities (Scotland) Act 1894, following upon an unsuccessful exposure of the subjects contained in the bond by him to public roup under his security, decerning him absolute proprietor of the said subjects. In the said bond and disposition in security, which formed the foundation of the pursuer's title, so much of the subjects thereby conveyed as were affected by the conclusions of the present action were not particularly described, but bore to be identified by means of a description by reference in the following terms—“All and Whole that piece of ground consisting of two roods 2 falls and 11
ells or thereby lying on the north side of Garngad Hill, within the territory of the burgh of Glasgow and county of Lanark, being the several lands and others particularly described and disponed in the disposition granted by Mrs Jane Robertson or Willis, wife of George Willis, surgeon, Baillieston, near Glasgow, with consent of Andrew Yeates, coalmaster in Glasgow, in favour of John Gray Macfarlane, merchant in London, dated the 5th, and recorded in the Burgh Register of Sasines at Glasgow on the 7th, both days of July 1865, together with the whole parts, privileges, and pertinents thereof, and whole houses and other buildings erected thereon.” 1 2 The description in the assignations of the bonds, and in particular in the decree vesting the security-subjects in the pursuer, and also in the articles of roup under which they were sold to the present defender, was in exactly similar terms.
There was no disposition by Mrs Jane Robertson or Willis, wife of George Willis, infavour of the party, or dated or recorded of the dates specified. The disposition intended to be referred to in the description was in fact granted by George Willis himself and not by his wife. The disposition granted by George Willis was dated and recorded of the dates above mentioned, and conveyed to the said John Gray Macfarlane “2 roods 2 falls 11
ells or thereby lying on the north side of Garngad Hill within the territory of the burgh of Glasgow and county of Lanark.” 1 2 Page: 386↓
The defender averred as follows:—Said description was ineffectual to vest the pursuer or his authors in the security-subjects, in respect the reference is to a non-existent disposition as hereinbefore explained. Apart from the attempted identification by reference, the lands attempted to be conveyed are quite unidentified, there being nothing to distinguish them from any similar area of the lands of Garngad Hill, which are of considerable extent.”
The defender pleaded, inter alia—“(4) The pursuer's titles to the subjects alleged to have been sold not containing a particular description, or a valid description by reference in statutory form sufficient to identify the subjects purporting to be conveyed, said titles are invalid and inept to confer on the pursuer a right to said subjects, and they along with the disposition offered by pursuer do not form such a valid progress of titles as the defender is bound to accept.”
The Conveyancing (Scotland) Act 1874 enacts (section 61)—“In all cases where any lands have been particularly described in any conveyance … recorded in the appropriate Register of Sasines, it shall not be necessary in any subsequent conveyance … conveying or referring to the whole or any part of such lands, to repeat the particular description of the lands at length, but it shall be sufficient to specify the name of the county… in which the lands are situated, and to refer to the particular description of such lands as contained in such prior conveyance … in or as nearly as may be in the form set forth in Schedule O hereto annexed.”
On 8th July 1902 the Lord Ordinary ( Low) pronounced the following interlocutor:—“Finds, decerns, and ordains against the defender in terms of the conclusions of the summons for implement and payment, and in the event of the defender failing to fulfil the conclusion for implement within the next three weeks, decree will be pronounced in terms of the conclusion for damages.”
The defender reclaimed, and argued—The title offered was not such as the purchaser was bound to accept. Apart from the reference to the disposition alleged to be granted by Mrs Jane Robertson or Willis, there was no description by which the lands sold could be identified. The reference clause was not sufficient, because it was not in the terms authorised by section 61 of the Conveyancing Act 1874 and Schedule O therein referred to. Under that Act the clause of reference must “refer correctly to the prior recorded conveyance, deed, or instrument containing the particular description of such lands.” Where a statutory form was used it must be used in exact accordance with the statutory forms— Thomson v. M'Crummen's Trustees, February 1, 1856, 18 D. 470, affd. 31 Scot. Jur. 425; Johnston v. Pettigrew, June 16, 1865, 3 Macph. 954; Murray's Trustee v. Wood, July 2, 1887, 14 R. 856, 24 S.L.R. 614. A purchaser was entitled to object to any title which was not marketable— Carter v. Lornie, December 20, 1890, 18 R. 353, 28 S.L.R. 197.
Argued for the respondent—The description of the lands was sufficient for identification at common law, apart from section 61 of the Conveyancing Act. All that was required was that the lands should be identified, and this could at common law be done by reference to another deed, or even by parole evidence— Macdonald v. Newall, November 16, 1898, 1 F.. 68, 36 S.L.R. 77.
But then the description does not stop with what I have read but goes on to say, “being the several lands and others particularly described and disponed in the disposition granted by Mrs Jane Robertson or Willis, wife of George Willis, surgeon, Baillieston, near Glasgow, with consent of George Yeates, coalmaster in Glasgow, in favour of John Gray Macfarlane, merchant in London,” and then the date of recording the deed in the Burgh Register of Sasines in Glasgow is given. Now, apart from the modern conveyancing statutes, which entitle the seller to describe the subjects of sale purely and simply by reference to another deed, I see no reason for doubting that a reference to an earlier deed as containing a full description of the lands sold was a perfectly legitimate mode at common law of eking out a generalised or incomplete description of the subjects of sale. In practice it was not infrequent to give a reference to prior deeds for the purpose of enabling subjects to be the more easily identified. Accordingly, if Mrs Willis had really been the disponer in the deed referred to I see no reason to doubt that these two descriptive clauses taken together would have constituted a valid and sufficient description, containing all that was requisite to define the subjects of the sale. The difficulty arises from the fact that it was not Mrs Willis but her husband who was the true disponer in the deed referred to. I do not regard the objection taken to the title as a merely frivolous objection. I can quite understand the purchaser's agents taking exception to a title with such a flaw in it. But we must consider whether the existence of this error of description so invalidates the purchase as to release the purchaser from
Page: 387↓
The
The Court adhered.
Counsel for the Pursuer and Respondent— Craigie. Agents— Ronald & Ritchie, S.S.C.
Counsel for the Defender and Reclaimer— J. R. Christie. Agent— W. B. Rainnie, S.S.C.