Scottish Court of Session Decisions

The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. c. 55), sec. 195, deals with ruinous buildings belonging to two or more owners, which cannot therefore be rebuilt or disposed of to advantage without the consent of all parties interested, and it authorises the Sheriff to have such buildings valued, distinguishing the different portions and apportioning the value, and to give the parties interested the option of a purchase and sale amongst themselves within a time fixed.

Section 196 enacts—“If any of the said parties fail to take advantage of the said option within the time so fixed, or shall not be able to agree as to which shall be the buyer and which the seller, it shall be lawful to the said sheriff to cause such houses, buildings, and areas to be exposed to sale by public auction at a price not being less than the appraised value, and in case of no offers, to reduce the upset price from time to time, and to sell the same to the highest bidder, under such regulations and upon such conditions, and after such public notice by advertisement in the newspapers or otherwise as the sheriff shall appoint, and the purchaser thereof shall be then bound within ten days after the sale, or within such time as may be fixed by the sheriff, to consign the purchase money in any bank to be named by the sheriff, upon a receipt or voucher, subject to the orders of the sheriff, otherwise the sale to be void and null, and the money so deposited shall remain at interest for the behoof of all parties interested therein, and subject to the future orders of the sheriff.”

Section 197—“Upon such deposit being so made, the sheriff shall pronounce his decree or warrant declaring the purchase duly completed, and authorising immediate possession of the tenements so sold to be given to the purchaser thereof; and such warrant or decree shall, upon being registered in the proper register of sasines, be a valid and sufficient title to such purchaser.”

Section 200—“If any houses, buildings, or areas have become waste or ruinous, or have become receptacles for filth and other nuisances, or unsafe and unfit for use and occupation, the commissioners may, by a notice addressed to the owner if his address shall be known, or if not known, by a notice affixed to a conspicuous part of such houses, buildings, or areas, require the same to be rebuilt or otherwise put into a state of repair to their satisfaction within three months of the date of such notice; and in the event of such requisition not being complied with the commissioners may apply to the Sheriff for warrant to sell such houses, buildings, or areas, and it shall be lawful to the sheriff to order the same to be valued and exposed for sale by public auction, and to sell the same, and such sale shall be made and carried out, or re-sale effected, the price deposited and applied, and the purchaser's title completed, in the way and manner hereinbefore directed with reference to waste and ruinous buildings, houses, or areas within the burgh held by two or more joint owners.”

The word “owner” is defined in section 4 (22) to “include joint-owner, fiar, liferenter, feuar, or other person in the actual possession of or entitled to receive the rents of lands, and premises of every tenure or description, and the factor, agent, or commissioner of such persons or any of them, or any other person who shall intromit with or draw the rents.”

On 31st March 1904 Mrs Mary Isobel Murdoch or Young and others, the trustees acting under the trust-disposition and settlement of the deceased John George Kirkpatrick Young of Glendoune, Girvan, Ayrshire, dated 26th February 1902 and recorded 16th July 1902, raised an action in the Sheriff Court at Ayr against Dr John Grainger, 25 Monteith Row, Glasgow, concluding for payment of £1, 1s. 11 1 2d., being the rent due at Martinmas 1903 for the year preceding that term of a certain area of ground in Girvan, of which Grainger was in possession.

The pursuers averred that the ground in question formed part of a larger area of ground included in a lease granted by their author Thomas Francis Kennedy, of Dunure, in favour of John M'Kenzie, manufacturer in Girvan, dated 25th December 1836 and 7th December 1839 and recorded in the General Register of Sasines 12th May 1894, which lease was for the period of 999 years from the term of Martinmas 1832 as to some portion, and from the term of Martinmas 1834 as to other portions, of the subjects let, and stipulated for a cumulo rent of £4, 7s. 9d. They averred that the sum sued for had been regularly paid to them up to the term of Martinmas 1902 by Hugh M'Ghie, a grandson of the said John M'Kenzie, who had many years ago acquired the rights under the lease to the portion of the ground now in question.

The defender averred that he “acquired the said subjects from Robert Wotherspoon, residing at 79 Roselea Drive, Dennistoun, Glasgow, conform to disposition by the said Robert Wotherspoon in favour of the defender, dated 26th and recorded in the Division of the General Register of Sasines applicable to the County of Ayr, 27th, both days of November 1903. The said Robert Wotherspoon acquired the said subjects by decree of the Sheriff of Ayrshire at Ayr, dated 22nd January 1903, and recorded in the said Division of the Genera

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Register of Sasines 16th February 1903. all in terms of the Burgh Police (Scotland) Act 1892.”

The decree of the Sheriff referred to was in the following terms:—“At Ayr the 25th day of November 1902 years and the 22nd day of January 1903 years, in a petition under section 200 of the Burgh Police (Scotland) Act 1892, in the Sheriff Court of Ayrshire at Ayr. by the Provost, Magistrates, and Councillors of the burgh of Girvan, petitioners—the Sheriff of the first date hereof having considered the said petition with the valuation produced therewith, appointed the houses or buildings described as follows, viz.: … to be sold heritably and irredeemably by public roup at the upset price of £42 sterling; appointed the sale to proceed upon articles of roup and sale to be prepared by the petitioners' agent and adjusted at the sight of the Clerk of Court and signed by him; appointed the sale to proceed at the sight of the Clerk of Court as judge of the roup in terms of said articles of roup and sale, and that upon such day and at such hour and place as should be fixed by him; appointed the sale to be publicly advertised once a week for three successive weeks in the Ayr Advertiser, Ayr Observer, and Ayrshire Post newspapers; appointed the price of said subjects to be consigned in the hands of the Clerk of Court to abide the orders of Court, and decerned ad interim And of the second date hereof approved of the report of sale, dated 12th January 1903, of the said houses or buildings above described to Robert Wotherspoon, 79 Roselea Drive, Dennistoun, Glasgow, at the price of £116 sterling, and in respect that deposit of said price had been made by the said Robert Wotherspoon, declared the purchase duly completed, and authorised immediate possession of the said houses or buildings so sold to be given to the said Robert Wotherspoon, the purchaser thereof, and decerned.”

No question was raised as to the regularity of the procedure before the Sheriff leading up to the foresaid decree.

The pursuers pleaded—“(3) The defender having under said decree only acquired the lessee's interest in said ground, the pursuer's claim is not excluded.”

The defender pleaded—“(3) The defender being absolute proprietor of the subjects in question in virtue of a statutory title and a decree of Court, the pursuers' claim is excluded and is incompetent, and the action should be dismissed with expenses.”

Upon 14th June 1904 the Sheriff-Substitute ( Shairp) sustained the third plea-in-law for the defender and dismissed the action.

Note.—“The origin of the defender's title is the decree of the Sheriff Court of Ayrshire pronounced in terms of section 200 of the Burgh Police Scotland Act 1892, and referred to in article 5 of the defences.

“Now the pursuers may have excellent grounds for reducing that decree, but till that decree is reduced it is in my opinion a complete bar to the present action.”

The pursuers appealed, and argued—The ground in question was part of the ground included in the long lease. Such a right had at first received doubtful recognition ( Jordanhill Creditors, 1752, Elchies (Tack) No. 18, 5 Brown's Sup. 797), but was fully recognised later ( Lord Advocate v. Fraser, 1758, 2 Paton App. Cas. 66). The right came to be assimilated to that of a vassal ( Maule v. Maule, March 4, 1829, 7 S. 527), and any doubt as to its nature was removed by the Registration of Leases Act 1857. It was the lessee's right under the lease which the Sheriff had to sell and to which he gave a title by his decree. The lessor was not “the owner.” He received no notice, and it would have been incompetent for him to step in and repair the ruinous buildings. He could not therefore prevent the sale, and it was very doubtful if he could claim on the price, for it was the interest of the “owner” which was sold, and it was those claiming through the owner to whom the purchase-money would belong. The result of the Sheriff's judgment was to wipe out every right above that of the owner, e.g., a superior's interest, as well as every right below that of the owner, e.g., a creditor's. That could not have been contemplated by the statute, and could not be defended on the ground of a disagreement amongst joint owners, such as was contemplated in sections 195 and 196. The effect of the respondent's contention would be to introduce a new species of tenure independent of the title of a predecessor or of any feudal superior.

Argued for the respondent—The procedure prior to the Sheriff's decree of November 1902 and January 1903, was presumably regular, and what was sold was the whole buildings and area with an absolute title without any reference to tenure or burdens. The purchaser was not the assignee of a lease, but the holder of an absolute title, and he had no contract with the lessor. He could not enforce the conditions of the lease against his neighbours. Further, it was not a judicial sale where the purchaser would take tantum et tale the right of his predecessor; but a compulsory sale, as in the case of land acquired by a railway company or school board. The object was to get rid of the nuisance, and that object would with difficulty be effected if burdens and conditions were to be imposed on a purchaser of ruinous property. Finally, the purchase price was there for all interested, and it was against it the appellants should seek their remedy.