Scottish Court of Session Decisions

The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), enacts—Section 34—“Any ex facie valid irredeemable title to an estate in land recorded in the appropriate Register of Sasines shall be sufficient foundation for prescription.…”

In December 1907 George Ramsay, heritable proprietor of Blackness Inn, Linlithgowshire, raised an action in the Sheriff Court at Linlithgow against Edward Spence, concluding for declarator that a piece of ground occupied by the pursuer as a stable and yard, and adjoining Blackness Inn, belonged to him as part and pertinent of Blackness Inn.

The pursuer averred that he was infeft in the subjects known as Blackness Inn, conform to disposition in his favour by Andrew Gilmour, dated 23rd May, and recorded in the General Register of Sasines applicable to the county of Linlithgow on 3rd June 1907; that the subjects were acquired by Andrew Gilmour from Alexander Kirkwood, conform to disposition dated 11th, and recorded in the New Particular Register of Sasines, &c., for the sheriffdoms of Edinburgh, &c., on the 19th, both days of December 1866; that the fore-said piece of ground was included as part and pertinent of Blackness Inn, and that it had been possesssd by him and his authors as such part and pertinent for more than twenty years.

The defender averred that prior to 1866 the subjects known as Blackness Inn formed part of the common property of the royal burgh of Linlithgow; that the tenure was free burgage; that the property was acquired by the said Alexander Kirkwood from William Wood, trustee on the sequestrated estates of the royal burgh of Linlithgow, conform to disposition (following on sale by public roup) dated 12th, and recorded in the Particular Register of Sasines for Edinburgh, &c., 21st November 1866; that the disposition was a conveyance of lands held burgage and falling to be recorded in the Burgh Register of Sasines for Linlithgow in terms of the Act 1681, cap. 13 (11), and subsequent statutes, and that not having been so recorded the said disposition and writs following thereon were not valid titles on which to found prescriptive possession. The defender also denied the pursuer's prescriptive possession.

The disposition in favour of Alexander Kirkwood was in these terms—[ After narrating the sale by public roup]—“Therefore I, the said William Wood, as trustee fore—said … do hereby dispone to and in favour of the said Alexander Kirkwood and his heirs and assignees whomsoever, heritably and irredeemably, all and whole the tenement of houses called and known by the name of the Blackness Hotel, with the garden ground on the south side thereof, and the vacant ground on the north side thereof so far as I as trustee foresaid have right thereto, with the pertinents of the said subjects and others, and my whole right, title, and interest, present and future, therein: And which lands are situated in the village of Blackness in the parish of Carriden and county of Linlithgow: But

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declaring that the foresaid subjects are hereby disponed with and under all burdens and restrictions upon my right presently in existence: With entry at the term of Martinmas Eighteen hundred and sixty-six: To be holden the said lands and others a me vel de me: And I, as trustee foresaid and with consent foresaid, resign the said lands and others for new infeftment or investiture: And I, as trustee foresaid and with consent foresaid, assign the writs according to inventory:… And I … assign the rents: And I … bind myself to free and relieve the said Alexander Kirkwood and his foresaids of all feu-duties, casualties, and public burdens due prior to the said term of entry: And I … grant warrandice from my own fact and deed only, and under exception of all current tacks and leases of the said lands and others: And I … consent to the registration hereof for preservation.…

The pursuer pleaded, inter alia— Separatim—The pursuer's titles being habile to convey a right to the said piece of ground, and the pursuer and his predecessors and authors for more than the space of twenty years having possessed the same continually and together, and that peaceably, without any lawful interruption made during the said space of twenty years, and the said possession having followed upon an ex facie valid irredeemable title to the subjects libelled belonging to the pursuer, and recorded in the appropriate Register of Sasines, the pursuer is entitled to declarator of property in the said piece of ground, as craved.”

The defender pleaded, inter alia—“(5) Pursuer having no habile title on which to found the plea of prescription, the action should be dismissed, with expenses.”

In February 1908, on the application of the defender, the cause was transmitted to the Court of Session, under section 9 of the Sheriff Courts (Scotland) Act 1877 (40 and 41 Vict. cap. 50).

On 15th January 1909 the Lord Ordinary ( Skerrington), after a proof, pronounced decree as craved.

Opinion.—“… The title of Dr Gilmour, the pursuer's author, consists of a disposition in his favour by ‘Alexander Kirkwood, wood merchant, Borrowstounness, heritable proprietor of the lands and others hereinafter disponed,’ dated 11th and recorded in the New Particular Register of Sasines, &c., kept for the sheriffdom of Edinburgh and constabularies of Haddington, &c., 19th, both days of December 1866. It bears to be granted in consideration of a price of £350 paid to Kirkwood by Dr Gilmour, and it describes the subjects as ‘situated in the village of Blackness, in the parish of Carriden and county of Linlithgow.’ Though the disposition does not expressly mention the ground lying to the west of Inn, it conveys the Inn with its pertinents. The holding is stated to be a me vel de me, and Kirkwood binds himself to free and relieve Dr Gilmour of all feu-duties, casualties, and public burdens. In short, the disposition is in the appropriate form prescribed by the Acts 10 and 11 Vict. cap. 48, and 21 and 22 Vict. cap. 76, in the case of subjects held otherwise than by burgage tenure. The subjects are disponed ‘with and under the burdens and restrictions specified and contained in the disposition of the said lands and others granted by William Wood, Chartered Accountant in Edinburgh, trustee upon the sequestrated estate of the royal burgh of Linlithgow as a body corporate and politic, with consent of the commissioners on said estate in my favour, bearing date the twelfth day of November Eighteen hundred and sixty-six, and recorded in the New Particular Register of Sasines, Reversions, &c., kept for the sheriffdoms of Edinburgh, Haddington, Linlithgow, and Bathgate, the twenty-first day of November Eighteen hundred and sixty-six.’

While it appears in gremio of Dr Gilmour's title that his author Kirkwood acquired the subjects from the trustee on the sequestrated estate of the burgh of Linlithgow, there is nothing upon the face of the disposition to show that the subjects were held burgage. I am therefore of opinion that the county register was the appropriate one in which to record this disposition. I am further of opinion that it is incompetent to refer to Kirkwood's title for any other purpose except to ascertain the burdens and restrictions affecting the subjects. See Fraser v. Lord Lovat, 1898, 25 R. 603. Any criticism of the validity of Kirkwood's title is I think excluded by the operation of the positive prescription, and the defender's objection really resolves itself into such a criticism. Hi's objection, as I understand it, is that the disposition by the trustee in bankruptcy in favour of Kirkwood was ineffectual as constituting a de me holding, in respect that such a trustee has no power to grant a feu; and that it was ineffectual as constituting an out-and-out conveyance a me in respect that it does not bear that the subjects are to be held in free burgage, and that it is not recorded in the burgh register. Whatever may be the merits of these objections, I am of opinion that it is not open to me to consider them. For the same reason I think it unnecessary to refer in detail to the evidence upon which the defender founded as showing that the Inn was in fact held burgage. While I think that there is a strong probability that it was held by this tenure, the defender has not, in my opinion, proved this as a fact.

In support of the proposition that a change of tenure may be gained by prescription, the pursuer's counsel referred to the case of Hamilton v. Scotland, 1807, Hume's Dec. p. 461.…”

The defender reclaimed, and argued—The pursuer had no title on which prescription could be founded. The subjects were proved to be burgage property; and the disposition to Kirkwood in 1866 was a conveyance and not a feu-charter. The appropriate register was therefore the burgh register. As the disposition and subsequent deeds had not been recorded in that register, the appropriate register,

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the title was bad, and was in 1866 incapable of founding prescriptive possession—Act 1681, cap. 13 (11); Donald's Trustees v. Yeats, July 11, 1839, 1 D. 1249; Earl of Fife's Trustees v. Magistrates of Aberdeen, May 25, 1842, 4 D. 1245. The appropriate register depended on the character of the holding and not on the terms of the deed. The Conveyancing (Scotland) Act IS74 (37 and 38 Vict. cap. 94), section 34, required that a title be not only ex facie valid but also recorded in the appropriate register of sasines, before it could be a sufficient foundation for prescription. Though it was doubtless true that the character of the holding might be changed by prescription— Hamilton v. Scotland, 1807, Hume 461—that would not avail here, because the change was effected and the pursuer's title complied with section 34 of the Conveyancing (Scotland) Act 1874, only on the lapse of forty years from the disposition to Kirkwood in 1866. If the title was not ex facie valid and recorded in the appropriate register of sasines, the possession following on it would not avail— per Lord Craighill in Glen v. Sceales' Trustees, December 15, 1881, 9 R. 317, 19 S.L.R. 201; Hinton v. Connell's Trustees, July 6, 1883, 10 R. 1110, 20 S.L.R. 731.

Counsel for the pursuer (respondent) were not called on.