Scottish Court of Session Decisions

[1] The petitioners are the heritors along with the University of Aberdeen of what is known as the Cruickshank Botanic Gardens, being Trustees under a Deed of Trust granted to facilitate the creation of those gardens. Originally the subjects with which this petition are concerned formed part of their property comprising the dwelling house and garden surrounded by its own walls known as Number 8, The Chanonry, Old Aberdeen. Latterly the house provided a dwelling house for the successive Professors of Botany at Aberdeen University. However, in 1983 the University ceased to have a use for the dwelling house as such and entered into a contract to sell it together with its garden to Mr and Mrs Thomas Hocking. That contract was effected by missives dated 20 February and 21 February 1983 and was completed by a Disposition by the then Trustees in favour of the purchasers recorded in the General Register of Sasines for the County of Aberdeen on 19 May 1983. Whatever had been contained in the missives or intended by the parties was not however reflected as a matter of fact in that Disposition by reason of the fact that the description of the subjects was related to an Instrument of Sasine recorded in the Register on 23 March 1847 which in fact related to an area now approximating 21/2 acres under Imperial Measurement including the house and garden but also part of the Botanic Gardens, which parts are still occupied by the University running the Botanic Gardens and indeed contained greenhouses, administrative offices and various developed gardens of both a rock and water nature.

[2] In or about August 1990 the Hockings placed the house on the market and in due course it was sold to the present respondents. Their missives were dated 19, 20 and 28 September 1990 and 1 October 1990. The Disposition by the Hockings in favour of the respondents was recorded in the General Register on 7 December 1990. That Disposition reiterated the description contained in the previous Disposition in favour of the Hockings and thus again referred back to the original Instrument of Sasine embracing an area of ground much in excess of the house and walled garden.

[3] Against that background the petitioners bring the present petition to seek rectification of those two Dispositions to reflect what they say was the common intention of the parties in relation to each contract, namely to sell only the house and its immediate environs defined by the walled garden.

[4] There was a procedure roll hearing before me which disposed of certain preliminary matters and the only live issue before me at this proof was whether as a matter of fact rectification was justified in terms of the relevant legislation which is Section 8 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1985.

[5] I heard evidence from Mr Hocking, Mr John Koss, who was his solicitor at the time of the sale to the respondents, Dr Pritchard, now retired but who had been a trustee of the Cruickshank Trust, although not so at the time of the sale to the Hockings. He was however a senior lecturer in the Department of the University and well aware of the position in relation to the Botanic Gardens; Mr Roland Rutherford, who is the head gardener of the Gardens, Mr Alan Innes, who is an experienced Aberdeen solicitor currently acting for the petitioners, Mr Keith Petrie who is a surveyor who prepared a report in relation to the dwelling house and gardens as regards valuation and finally, as far as the petitioners are concerned, Mrs Kate Crosby who was an assistant in the firm acting for the Hockings at the time of the sale by them to the respondents.

[6] The first respondent represented himself and gave evidence from the witness box supported by his wife.

[7] Certain questions of credibility and reliability arise in the case since it is necessary to ascertain in terms of the legislation what was the common intention of the parties in relation to each of the relevant contracts of sale. However what is an inescapable fact is that if it was the intention of the parties in each case to sell only the house and its immediate environs confined by the walled garden, the Dispositions, by referring back to the description of the Instrument of Sasine, do not reflect that common intention. The description in the original Instrument is in Scots measures but has been translated to represent an area including the house and garden of approximately 21/2 acres. It is also an escapable fact that notwithstanding the mention in the particulars of sale offered by the Hockings, in relation to an area of 11/4 acre, the relevant area of the house and the garden is stated to be about half an acre.

[8] In relation to the original sale between the trustees and Mr Hocking, both Mr Hocking and Dr Pritchard were adamant that all that was being sold and bought was the house confined to it and the walled garden. There was no intention on the part of the Trustees to sell to Mr Hocking any additional ground comprising part of Botanic Gardens nor was there any intention on Mr Hocking's part to buy it. Throughout his entire occupancy of the house he never thought for a moment that he owned any ground beyond the west wall of the garden which is at its bottom west end. Without further ado therefore I hold as a matter of fact that the 1983 Disposition did not reflect the common intention of the parties as far as the understanding of the parties, as far as the actual subjects being sold.

[9] With regard to the sale to the respondents, the first respondent maintained, both in question and in evidence, that he had viewed the property in the early evening, had not even identified the extent of the garden and had thereafter made an offer based on the particulars which included a plan which he maintained was 7(1) of process and a reference to an area in excess of 1 acre. He therefore maintained that he had purchased an area in excess of 1 acre and that no mistake had been made in the subsequent Disposition to him. Mr Hocking, in relation to the sale by him, maintained his position that he was only selling on what he thought he had originally bought. Furthermore his plan, which was attached to the particulars No.6/9 of process, which he himself prepared showed the actual area of ground that he maintained correctly he owned delineated originally in red. A comparison of the two plans 6/9 and 7/1 show immediately that 7/1 is a doctored version of 6/9, having regard to discrepancies between the two. The first respondent denied that he had doctored the plan, both he and his wife maintaining that 7/1 was the plan prepared and given to them by Mr Hocking. Mr Hocking however, who was recalled to the witness box on this point, was adamant that he had prepared the original plan 6/9 and made a number of copies of it for the purpose of distributing it with particulars but had certainly not doctored it to represent 7/1. A most interesting piece of evidence which he gave was that during his ownership he deposited grass clippings over the west end wall of his garden. He got a sharp answer from the gardeners.

[10] I entirely accept the evidence of Mr Hocking in this respect. He would have no reason to prepare 7/1 which distorted the position as he understood it to be by including part of the ground beyond the end of the garden wall. The first respondent adamantly denied that he had doctored it but it has to be said that he had a clear motive to do so since he was seeking to preserve what the conveyance had actually given him which thus included some area of ground beyond the garden wall, although he was never able to specify precisely what ground that would be beyond vague references to additional area which he drew in on a plan appended to 7/6/9 of process and attached to a letter written by him once he had discovered the error.

[11] Throughout the relatively brief hearing the first respondent was never able to give me a direct answer to the question as to what he thought physically he was buying beyond constant references to the acreage mentioned in the particulars. He could not define what area beyond the west wall was in fact allegedly included in the particulars nor could he avoid the fact that the particulars described the property as "a house with walled garden adjoining the Botanic Gardens". He seemed to think that it was sufficient for his purposes that the actual conveyance conveyed more in acreage terms than the actual garden and house put together and thus he was entitled to keep what was recorded in the Disposition as his property. He could not, however, offer any explanation as to why he was thus entitled to the whole 21/2 acres contained in it as described in the original Instrument of Sasine. Furthermore, at the highest he was infeft in a Disposition a non domino, given my finding in relation to the conveyance to the Hockings. Such can only be purified by uninterrupted occupation for the prescriptive period by the claimant. Such has not occurred.

[12] The fundamental position of the first respondent was that he was entitled to keep what had been conveyed to him and had refused to agree to rectification over the years, the motive apparently being not financial but a determination to contain control over the ground lest it ever be put up for development. He maintained he was content that the Botanic Gardens continued to use the ground so long as that was for what it was being used. His wife supported that position.

[13] However understandable that motive may be it is, in my opinion, a blatant attempt to exploit an obvious mistake which, despite his assertions otherwise, the first respondent must have recognised at a very early stage of the process. He must have known that he got much more than he had bargained for even if he got less than the acreage stipulated in the particulars, which was not in any way warranted. Perhaps, not without significance, the first respondent also accepted in the witness box that if he had been proffered the Dispositions which have now been prepared by Mr Innes to achieve rectification, which are 6/19 and 6/20, the relevant plan being attached to 6/19, he would have accepted them as reflecting what he had bought. This makes it very clear to my mind that the first respondent realised that he had achieved a conveyancing windfall which he was not prepared to surrender.

[14] The first respondent also maintained that a long line of documents including writs had referred to the phrase "No. 8, The Chanonry" as meaning all the land described in the original Instrument of Sasine. I do not consider that is anything to the point when one is endeavouring to ascertain the intention of the parties originally in 1983 and thereafter in 1990, severance of the property having been effected by the 1983 contract. When I pressed him in submission to offer any basis upon which he could assert that the common intention of the parties in 1983 was to sell more than the house and garden, or more specifically, that the University intended in 1983 to part with part of the Botanic Gardens, he was unable to give me any answer and certainly not an affirmative one. Such is not surprising since there is no answer to the basic proposition that there was never any such intention.

[15] For these reasons the position of the respondents is wholly untenable. I am entirely satisfied that the common intention of the parties to the 1990 contract was to sell the house and walled garden and there was never any intention on the part of Mr Hocking to sell nor the respondent to buy any part of Botanic Gardens. The mistake in acreage in the particulars in unfortunate but nothing to the point, not least when the plan prepared by Mr Hocking demonstrates exactly what he is putting up for sale. That is the plan which I have already held to have been part of the particulars, contrary to the evidence of the respondents, whose evidence in this respect I do not accept.

[16] In these circumstances and for these reasons I consider this to be almost as clear a case for rectification as one can imagine against the background of the purpose of the 1985 legislation, namely to rectify mistakes based on a failure to implement a common intention. I have serious reservations about the credibility of the first respondent not least with regard to the original particulars and the plan but I will not take the matter any further. I do not include the second respondent in that very serious criticism. It was equally not without significance that he made no attempt to lead any evidence from the solicitors acting for him at the time of his purchase. I am in no doubt that any evidence from them would have put the matter even further beyond a doubt as to what was the intention of the parties as to the subjects of sale.

[17] In the foregoing circumstances the prayer of the petition will be granted in terms with only one addition, namely a reference to 6/19 of process in order to identify the relevant plan referred to in the prayer.