Scottish Court of Session Decisions

On 9th January 1903 Sir John Denison Pender, K.C.M.G., and others (Sir John Pender's trustees) presented a petition to the First Division of the Court, in which they, inter alia, narrated that the testator, a domiciled Englishman, had died in 1896 leaving moveables and heritage, and included in the heritage the lands of Seafield, Blackburn, and Whitehill, in Linlithgowshire, which he had bought for the purpose of developing the minerals; that the testator had granted a lease of certain minerals to the Pumpherston Oil Company Limited, for thirty-one years and of a portion of the lands for building purposes for ninety-nine years, on which the company's works had been erected, and also a feu of a piece of ground for the erection of workmen's houses; that the lease of the minerals had been terminated and they were anxious and had arranged terms for a renewal thereof; that they had also been asked for a feu for a school by the School Board of the Parish of Livingston; that although they had under the testator's will express power to sell the heritage, their power to grant feus or a valid lease had been questioned; that conceiving it in the interest of the trust they should have such powers, and the trust being an English trust, they had applied to the High Court of Justice for a judgment on that question; and that Mr Justice Swinfen Eady in the said application pronounced the following order:—“And the Judge being of opinion that it is expedient in the interests of the beneficiaries under the said will that the trustees thereof should have power to deal with the lands of the testator in Scotland devised by the said will by granting feus thereof for building purposes or by leasing the same and the minerals thereunder for mining purposes in accordance in either case with the custom of the locality in which the said lands are respectively situate, and as regards any mining lease subject to setting aside as capital money such part of the rent as is required by section 11 of the Settled Land Act 1882, and also being of opinion that by the law of England, so far as it controls the trusts of the lands devised by the said will and codicils, such feus and leases for mining purposes might be made of the said lands and minerals under the Settled Lands Acts, but the said Acts do not extend to property in Scotland, and the plaintiffs by their counsel, and the defendants Sir James Pender and Dame Marion Denison Des Voeux by their solicitor, consenting to the following order: It is ordered, that the plaintiffs, Sir John Denison-Pender, Lord John Hay, and Richard Enfield, as such trustees as aforesaid, be empowered to apply at any time or from time to time to the proper Court or Courts in Scotland for all necessary relief to enable them to give effect to this direction, and particularly to obtain power and authority to enable the granting with regard to the lands in Scotland devised by and subject to the trusts of the said will of feus for building purposes and of leases for mining purposes.”

The prayer of the petition, after providing for service, continued—“And thereafter on resuming consideration hereof, and after such inquiry into the circumstances as to your Lordships shall seem meet, to grant warrant to, authorise and empower the petitioners to grant mineral leases of the minerals in the said lands of Seafield, Blackburn, and Whitehill, in the county of Linlithgow, for periods not exceeding thirty-one years, and to grant feus of the said lands or any part thereof; or otherwise and in any event to grant warrant to, authorise and empower the petitioners to grant a new lease of the shale and coal in the lands of Seafield, Blackburn, and Whitehill, formerly let by the said late Sir John Pender to the said Pumpherston Oil Company, Limited, in terms of the said missives, and to grant a feu to the School Board of the Parish of Livingstone of a piece of ground not exceeding one acre in extent for the erection of a school; or to do further or otherwise in the premises as to your Lordships may seem proper….”

The petitioners now presented a note, dated 7th July 1906, in the said petition, in which after narrating the presentation of the petition, the granting by the Court on 21st February 1903 of power for the particular lease and feu therein mentioned, and the granting under a subsequent note, on

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14th June 1904, of power for a building lease of an additional acre to the Pumpherston Oil Company, Limited, stated that they had been again requested by the Pumpherston Oil Company to grant a feu of an additional piece of land extending to 1 rood 21 poles 12 2–9th square yards, part of the lands of Seafield, and that application for power therefor was now made, but “the want of power to grant feus or building or other leases, and the consequent necessity for applying on each separate occasion when such are required to your Lordships for power to grant the same, hampers the petitioners in their administration of the trust-estate, and makes it difficult for them to develop the same to the full extent. It further involves the trust-estate in considerable expense, and this difficulty and expense would be obviated were a general power to feu or to grant mineral or building leases given to the petitioners, in terms of the order pronounced on 1st December 1902 by Mr Justice Swinfen Eady, which is printed in the said petition, and is referred to for its terms. The expense of the present application will not be less than £20, while the annual feu-duty to be received is only £4, 9s. 3d.,” and “that this note is presented in conformity with the proceedings taken in the English Court, as narrated in said petition, and as an appeal to the nobile officium of the Court.”

The prayer of the note, after providing for service, was—“And thereafter on resuming consideration hereof, and after such inquiry into the circumstances as to your Lordships shall seem meet, to grant warrant to authorise and empower the petitioners to grant feus or building leases of the said lands or any part thereof, or alternatively to authorise and empower the petititioners to grant a building lease or feu of the said piece of ground of 1 rood 31 poles and 12 2–9th square yards in extent to the said Pumpherston Oil Company, Limited, in terms of the said offer; or to do further or otherwise in the premises as to your Lordships may seem proper.”

Argued for the petitioners—This was an appeal to the nobile officium of the Court, as owing to this trust being an English one the Trust Acts were inapplicable. The English Court was satisfied as to the expediency of the powers craved, and the trustees had been given under the will express power to sell. Successive applications for each feu or lease involved the trust-estate in unnecessary expense, and therefore the general powers asked for should be granted. Such powers had been granted in the Outer House, where a general power to feu had been granted with a minimum rate of feu-duty fixed.—Reference was made to Allan's Trustees, March 13, 1897, 24 R. 718, 34 S.L.R. 532, and to the Settled Land Act 1882 (45 and 46 Vict. cap. 38), section 10.

At advising—