Scottish Court of Session Decisions

Section 2 of the Schools Sites Act 1841 (4 and 5 Vict. c. 38) is as follows:—“Any person, being seised in fee-simple, fee-tail, or for life, of and in any manor or lands of freehold, copyhold, or customary tenure, and having the beneficial interest therein, or in Scotland being the proprietor in fee-simple or under entail and in possession for the time being, may grant, convey, or enfranchise by way of gift, sale, or exchange, in fee-simple or for a term of years, any quantity not exceeding one acre of such land, as a site for a school for the education of poor persons, or for the residence of the schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge: Provided

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that no such grant made by any person seised only for life of and in any such manor or lands shall be valid unless the person next entitled to the same in remainder, in fee-simple, or fee-tail (if legally competent) shall be a party to and join in such grant: Provided also, that where any portion of waste or commonable land shall be gratuitously conveyed by any lord or lady of a manor for any such purposes as aforesaid, the rights and interest of all persons in the said land shall be barred and divested by such conveyance: Provided also, that upon the said land so granted as aforesaid, or any part thereof, ceasing to be used for the purposes in this Act mentioned, the same shall thereupon immediately revert to and become a portion of the said estate held in fee-simple or otherwise, or of any manor or land as aforesaid, as fully to all intents and purposes as if this Act had not been passed, anything herein contained to the contrary notwithstanding.”

Henry Houldsworth on 11th September 1858 granted to James Hunter a feu of some 4 acres of ground. The charter was in the following terms:—“I, Henry Houldsworth, Esq., of Coltness, heritable proprietor of the subjects after described, considering that the Coltness Iron Company are in the course of erecting a school for the district of Newmains in the parish of Cambus-nethan for children of the labouring, manufacturing, and other poorer classes therein, and a residence for the teacher thereof; and that they have applied to me to grant a piece of ground as a site therefor: Therefore I do hereby give, grant, and dispone to and in favour of James Hunter, of Auld-houseburn, residing at Newmains House in the foresaid parish, one of the partners of the said company, and his heirs and successors whomsoever, heritably and irredeemably, All and Whole … a piece of ground … to be possessed and applied as a site for the foresaid school and residence, and for no other purposes whatever … To be holden the foresaid subjects by the said James Hunter and his foresaids of and under me and my successors in the estate of Coltness, in feu-farm, fee, and heritage for ever; for payment to us by the said James Hunter and his foresaids of the sum of one shilling sterling at the term of Whitsunday yearly, and for payment of one penny Scots money on the entry of heirs and singular successors; And I bind myself to free and relieve the said James Hunter and his foresaids of all casualties and public burdens; And I grant warrandice; And I consent to the registration hereof for preservation: Moreover, I desire any notary-public to whom these presents may be presented to give to the said James Hunter, or his foresaids, sasine of the subjects above disponed, but under the special restriction as to the use thereof before specified.” … James Hunter became infeft on the 5th of October 1858.

On 13th September 1858 James Hunter disponed the piece of ground to Henry Houldsworth and others and himself as trustees for the school to be erected. The disposition was in the following terms:—“I, James Hunter, … freely and voluntarily do hereby, under authority of an Act passed in the fifth year of the reign of Her Majesty Queen Victoria, entituled an Act to afford further facilities for the conveyance and endowment of sites for schools, and of all other Acts enabling me herein to sell, alienate, and dispone from me, my heirs, and successors, to and in favour of … and … being four of the resident inhabitants of the parish of Cambusnethan in which the said school is situated and being heads of families, and to such other person or persons as may be hereafter assumed to act along with them and me, in virtue of the powers hereinafter inserted as trustees for the said Act, All and Whole … to be applied as a site for a school for the district of Newmains in the said parish for children of the labouring, manufacturing, and other poorer classes, of and in the said parish or the vicinity thereof, and for a residence for the teacher or teachers in the said school, and for no other purposes whatever. The feu-disposition, which contained no warrant of registration nor precept of sasine, was recorded in the New General Register of Sasines on 17th September 1858 in terms of the Schools Sites Act 1841, sec. 10.

The trustees entered into possession of the subjects and erected buildings. A large part of the cost was borne by the Coltness Iron Company, and Government also made a grant. For many years the trustees carried on the school, the Coltness Iron Company giving substantial subscriptions.

In March 1902 the Coltness Iron Company intimated to the trustees that they were to discontinue their subscriptions to the school fund as soon as the School Board of the Parish of Cambusnethan could erect another school, and indicating a year or eighteen months thence as a period within which this might reasonably be done. This intimation was communicated by the trustees to the School Board, and also to the Education Department, on 5th April 1902. On 7th July 1903 the Coltness Iron Company intimated to the trustees that their contribution would terminate on 1st August 1903. This intimation was communicated to the School Board. On 26th June the school was closed for the summer holidays, and was never re-opened.

In April 1904 an action was raised by (1) James Hamilton Houldsworth, the proprietor of the estate of Coltness and grandson of Henry Houldsworth, (2) the trustees under the trust-disposition and settlement of James Hunter, and (3) John Leslie Hunter, James Hunter's heir-at-law, against the surviving trustees, original and assumed, acting under the above-mentioned disposition of James Hunter of 13th September 1858, in which they sought declarator that the subjects had ceased to be possessed and used as a site for a school or teacher's residence, and had reverted under the titles to the pursuer James Hamilton Houldsworth.

No appearance was entered by the parties called as defenders, but a minute of compearance was lodged by (1) the School

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Board of the parish of Cambusnethan, (2) a number of persons, parents of children of the classes for whose benefit the school was originally erected. The Lord Ordinary, under reservation of all questions as to their title and interest, allowed them to lodge defences.

The pursuers pleaded, inter alia—“(1) The pursuers are entitled to decree as concluded for—(1st) In respect that the subjects in question were and are held by the defenders under the feu-charter mentioned in the condescendence solely for the purpose of being used and applied for the foresaid school and residence, and for no other purposes whatever, and they have now ceased to be so used and applied. (2nd) In respect that the said provision in the defenders' title with regard to the use of the said subjects is a material and essential condition of, and real burden on, the same. (3rd) In respect that under the provisions of the School Sites Act of 1841, which is incorporated in the defenders' title, the subjects in question, on ceasing to be used for the said purposes, revert in property to the pursuer, the said James Hamilton Houldsworth. (2) The minuters, the School Board of the parish of Cambusnethan and others, have no title or interest to appear to oppose the conclusions of the summons.”

The minuters pleaded, inter alia,—“(4) The purpose for which the ground was conveyed not having failed, the defenders are entitled to absolvitor. (6) In any event, the provisions of the School Sites Act are inapplicable, in respect that the ground greatly exceeds one acre in extent.”

On 12th July 1904 the Lord Ordinary ( Kyllachy) granted the pursuers decree in terms of the conclusions of the summons.

Opinion.—“The pursuers in this case are (1) Mr J. H. Houldsworth, who is proprietor of the estate of Coltness and heir of the late proprietor Mr Henry Houldsworth; and (2) the testamentary trustees and heir-at-law of the late Mr Hunter of Auldhouseburn, who was a partner with the late Mr Houldsworth in the Coltness Iron Company.

“The object of the action is to have it declared that a certain piece of ground forming the site of a school and schoolmaster's house erected in 1858 by the Coltness Iron Company has ceased to be used and applied for the purpose for which it was granted by the pursuers' authors, and has thereby reverted in terms of the title to the pursuers, and in particular to the pursuer Mr Houldsworth. The title consists of (1) a feu-charter by the late Mr Henry Houldsworth to his partner the late Mr Hunter; and (2) a disposition substantially of even date bearing to be granted by Mr Hunter in terms of the School Sites Act of 1841 in favour of certain trustees, who so far as surviving are called as defenders to the action. These trustees it appears consider that they have no good defence to the action, and accordingly they have not entered appearance. But a minute of compearance having been lodged by the School Board of the parish and certain concurring parishioners, I, perhaps not quite regularly, allowed these compearers to lodge defences, and (without deciding anything as to their title) allowed a record to be made up. Upon that record I had the other day a general argument in the Procedure Roll. The immediate question is, whether the compearers have made out a title to intervene. But in considering that question it is difficult to avoid trenching on the merits.

“The position of the compearing defenders seems to be this. They say that this is an educational trust; that the trustees who are called as defenders are committing a breach of trust in not defending the action; and that they, the compearers, having an interest in the educational arrangements of the parish, and being therefore, as they say, beneficiaries under the trust, have a title to interpose and maintain certain defences which the trustees as they (the compearers) contend wrongfully refuse to maintain.

“In the view which I take of the case it may, for shortness, be as well to assume that the defenders have a sufficient title to raise and argue this question of breach of trust, and perhaps on that assumption the best course may be to take the case as if the trustees were maintaining the defences which it is said they ought to maintain and to see whether and how far these defences are well founded.

“The suggested defences are (1) that under the title there is no effective provision for the reversion of the site to the donor, even on the assumption that the school has been discontinued, and (2) that assuming the contrary, the school has not in fact been discontinued—at all events, discontinued in circumstances on which the pursuers can found.

“It does not appear to me that either of these defences could have been maintained by the trustees with any hope of success.

“As to the terms of the title, it is quite true that in the original feu-charter there is no express clause of irritancy; and it may be that without such express clause no forfeiture of the feu is possible for breach, even of the most express conditions affecting its use. But the case is different with respect to the disposition by Mr Hunter, which constituted the trust and conveyed the subjects to the trustees. That disposition bears to be and is a statutory disposition under the Act of 1841, and of course incorporates by reference all the conditions and provisions expressed in that Act with respect to the duration and other incidents of titles granted under it. And that being so, it is not disputed that the second section of the Act makes the following provision:—‘Provided also that upon the said land so granted as aforesaid or any part thereof ceasing to be used for the purposes in this Act mentioned, the same shall thereupon immediately revert to and become a portion of the said estate, held in fee-simple or otherwise, or of any manor or land as aforesaid, as fully to all intents and purposes as if this Act had not been passed, anything herein contained to the contrary notwithstanding.’

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“Now, what is the supposed objection to the application in the present case of this statutory irritancy. It seemed to be something of this sort—(1) It was said that the site here extended to four acres, while the statute (which, inter alia, it has to be noted, empowers heirs of entail and other disabled persons to make conveyances for the purposes of this Act) confines the powers which it confers to sites not exceeding one acre. I fail, however, to see how the trustees who accepted without objection the larger area, could be heard now to complain of the excess, or to claim that because the donor, being an owner in fee-simple, chose to exceed the limit expressed (plainly, I think, only for disabled persons), the title must therefore be read, not as an invalid title, but (contrary to what it bears) as being a common law title, having no incidents beyond what the common law would imply. It appears to me that for the trustees this argument—supposing it sound—would be wholly jus tertii It is in any case not an argument which in my opinion any Court would hold a body of trustees bound to take up and urge at the bidding of anybody.

“The next point was that the 14th section of the Act of 1841 provided (subject to certain safeguards) for excambions and sales of sites by the trustees or managers. But, of course, this power only applied while no irritancy had been incurred; and although no doubt its existence made, in possible circumstances, the donor's remedies somewhat imperfect, that imperfection could not, in my opinion, at all derogate from the effectiveness of the irritancy while the power remained unexercised.

“The third point was, I think, even more extreme. It was rested on a somewhat loose expression at the close of the clause to the effect that the site should revert to the estate from which it had been given off. The suggestion was that Mr Hunter, whose position I have explained, had himself no estate adjacent to the site in question, and that the ground, although truly given off from the estate of Coltness could not revert to any estate except to some estate held by Mr Hunter. I confess it seems to me that the meaning of the clause simply is that the ground shall revert to the donor. But supposing it necessary that the donor should still possess the adjacent ground, the true donor in this case was, quite obviously, not Mr Hunter but Mr Henry Houldsworth, whose grandson is now, as I have said, the proprietor of Coltness estate, and the leading pursuer.

“It remains, however, to consider whether the school has been in terms of the title discontinued. And here there is no doubt of one thing, that it has been discontinued in point of fact. It has been closed for at least a year, and (so far as the circumstance is of importance) after eighteen months' notice of the intention to close it. What is suggested, however, is that in closing the school the trustees acted unlawfully and in breach of their trust—unlawfully, because they had, it is said, the power to secure the continuance of the school by handing it over to the School Board, who were willing to take it over.

“Now, although I had an ingenious argument upon this, as upon the other points in the case, I am in the first place unable to understand what the pursuers have to do with the trustees' rights and duties in a question with third parties; or how the school having been in fact closed for a year, they (the pursuers) have any concern as to whether the trustees in so closing it acted rightly or wrongly. The pursuers may, I think, well ask why if the School Board desired to enforce against the trustees their alleged duty either to continue the school or to hand it over to them (the School Board), they did not bring an action to try that question during the eighteen months before the school was in fact closed.

“But in the next place, if I am to deal with the matter on its merits, I must state it as my opinion (1) that it is not at all clear that this was a school erected or maintained by contributions or donations in the sense of the 38th section of the Act of 1872, and therefore a school which the trustees could, even if they desired to do so, hand over to the School Board; (2) that it is on the other hand quite clear that the trustees are at least under no duty to do so, either under their trust deed or on any general doctrine of trust law. I rather think that although the School Board make some general averments the other way, that this was really a school founded by the Coltness Company or its partners, under trusts which were to some extent of a special character. But even if that were otherwise, the 38th section of the Act is at best only permissive, and applies only where the managers or trustees of the school are of opinion and resolve that it is proper to hand it over to the management of the School Board.

“The result, on the whole, is that the defences lodged by the compearing defenders fall to be repelled, and the pursuers fall to have decree in terms of the conclusions of the summons—with expenses against the compearing defenders.”

The compearing defenders reclaimed, and argued—(1) Both sets of defenders had a good title to intervene; they were beneficiaries under the trust, being persons interested in the educational arrangements of the parish, and any beneficiary under a trust could appear and call the trustees to account— Merchant Company and Trades of Edinburgh v. Magistrates and Governors of Heriot's Hospital, August 9, 1765, M. 5750; Christie and Others v. Magistrates and Council of Stirling and Others, July 6, 1774, M. 5755; Boss v. Governors of Heriot's Hospital, February 14, 1843, 5 D. 589; Bow and Others v. Patrons of Cowan's Hospital, December 6, 1825, 4 S. 276; Lord Advocate and Clyde Trustees v. Lord Blantyre, June 19, 1879, 6 R. (H.L.) 72, 16 S.L.R. 661; Kirk Session of Largs v. School Board of Largs, June 10, 1899, 1 F. 915, 36 S.L.R. 721. (2) The ground had not reverted to Houldsworth. Upon any view no forfeiture could occur, nor could it revert until it had ceased to be used for the purposes intended, and permanent

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discontinuation was not to be inferred from so brief a cessation. Forfeiture could not take place unless there was no possible way of carrying out the truster's general purpose. They might hand the site over to the School Board— Grant v. MacQueen, May 23, 1877, 4 R. 734, 14 S.L.R. 478; M'Dougall, June 29, 1878, 5 R. 1014; M'Culloch v. Kirk Session and Heritors of Dalry, July 20, 1876, 3 R. 1182, 13 S.L.R. 717. Assuming, however, that there had been discontinuation, as there was no clause of irritancy in the charter or of reversion in the disposition, the pursuers depended upon section 2 of the Schools Sites Act 1841. That section however was inapplicable, being confined to sites not exceeding one acre. Further, the conveyance was not in the form prescribed by the Act, and the presumptions were all against reversion, the object of the Act being to secure sites for educational purposes and not to safeguard donors. In any case the site must revert to the “estate' and not to the heir of the donor.

Argued for the respondents—The school had in fact ceased to be carried on. The pursuers were entitled to decree accordingly, the purposes of the trust having failed, and no cy-pres scheme being possible— Young's Trustees v. Deacons of the Eight Incorporated Trades of Perth, June 9, 1893, 20 R. 778, 30 S.L.R. 704; Clark v. Taylor, July 7, 1853, 1 Drewry Ch. Rep. 642; Whyte's Factor v. Whyte, January 10, 1891, 18 R. 376, 28 S.L.R. 78. That the site reverted to Houldsworth resulted both at common law and under the Schools Sites Act of 1841. At common law the obligation to maintain a school was a real condition of the tenure under each of the two deeds, enforceable prior to 1874 by declarator of non-entry, subsequently by declarator and adjudication. By statute reversion was provided for by section 2 of the Act of 1841—an Act expressly adopted in the disposition which was for practical purposes in the form provided by section 10. The limitation of the amount of land disponable under the Act applied only to limited owners and not to the case of a fee-simple proprietor such as the present. Further, the compearing defenders had no title. To give them a title they would have to point to some possible and competent scheme which would be to their advantage. Their only suggestion was a gratuitous transference to the School Board. That was neither competent nor advantageous—incompetent, because (1) the school was an “endowed school” and could not be transferred gratuitously— M'Culloch v. Kirk Session of Dalry ( supra); Sutherland, February 3, 1903, 5 F. 424, sub. nom. Trustees of Gateside School, 40 S.L.R. 345; (2) the scheme involved delegation of duty— Philp's Trustees, June 27, 1893, 20 R. 900, 30 S.L.R. 790; M'Lean, November 4, 1898, 1 F. 48, 36 S.L.R. 46,—not advantageous, because it was a mere relief to rates— Kirk Session of Prestonpans v. School Board of Prestonpans, November 28, 1891, 29 S.L.R. 168, 19 R. 193; Governors of Jonathan Anderson Trust, March 12, 1896, 23 R. 592, 33 S.L.R. 430.

At advising—