Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 2

XA96/14

Lord Justice Clerk

Lady Paton

Lord Bracadale

OPINION OF THE COURT

delivered by the LORD JUSTICE CLERK, LORD CARLOWAY

in the APPEAL

(FIRST) DOUGLAS & ANGUS ESTATES, and (SECOND) RICHARD JOHN CARMICHAEL Pursuers and respondents:

against

THOMAS RUSSELL McALLISTER

Defender and appellant;

Act: MacColl; Anderson Strathern LLP (Respondents)

Alt: MacDougall; TC Young Wilson Terris (for Miller Beckett & Jackson, Glasgow) (Appellant)

6 January 2015

Introduction

[1]        This appeal concerns the defender’s occupation of land known as Muirfoot Tollhouse, Rigside, Lanarkshire.  The defender has occupied the land since at least June 2006.  He uses it for pallet storage and lorry parking in connection with his business, which he conducts from adjacent land owned by him.  The pursuers aver that they are pro indiviso proprietors of the land and that the defender occupies it without right or title.  The defender denies that the pursuers own the land, although he asserts no right or title himself. 

[2]        The appeal raises the issue of the extent to which a pursuer requires to establish his own title to land in circumstances where a defender, whom he is trying to remove, does not have any title but avers that the land may be owned by a third party.

Procedure
[3]        The pleadings, at the stage of the closing of the record, contained a plea (no 1) of no title to sue tabled by the defender.  The pursuers had a general plea (no 1) to the relevancy of the defences.  There seems to be a degree of uncertainty about whether or not an amendment procedure changed the numbering of the pleas at the time of the debate before the sheriff (cf the final page of the sheriff’s judgment deferring a decision upon an amendment and the interlocutor of 17 January 2014).  The pursuers’ general plea to the relevancy has become renumbered (no 2) in the appeal print.  However, it was upon this plea (numbered as 1), and not that of no title to sue, that the cause was sent for debate (interlocutor of 24 September 2013).

[4]        On 10 March 2014, the sheriff found that the defender’s averments were irrelevant and sustained the pursuers’ general plea to the relevancy.  She granted decree of declarator, that the defender occupied the land without any right or title, and removing as craved.  On 9 June 2014 the Sheriff Principal refused the appeal and adhered to the interlocutor of the sheriff.

The Titles
[5]        Although there was no formal joint minute agreeing copies as principals, the debate proceeded on the assumption that the copy titles produced by all parties, and incorporated into the pleadings by reference, were what they bore to be.  The quality of some of the deeds, both in terms of the narrative and certain attached plans, left much to be desired.  However, the court was informed that the versions of the deeds produced were the best that could be made available.  The principals could not be located.  Parties were content to proceed on that basis.      

[6]        The second pursuer’s title derives from a disposition to him by the Trustees of the late Sir Windham Eric Francis Carmichael Anstruther of Anstruther and Carmichael, Baronet, dated 4 and 8 February and recorded in the General Register of Sasines for the County of Lanark on 30 March, 1993.  The disposition conveys, inter alia. “the lands and estate of Carmichael and others … comprehending the Lands …  In the First Place …” described in a disposition by the Trustees of the late Sir Windham Robert Carmichael Anstruther in favour of Sir Windham Eric, dated 20 and 21 January 1933 and recorded on 26 June 1934 but under exception of several subjects described in deeds detailed in a Schedule to the 1993 disposition.  Amongst the 145 items of excepted land in this Schedule are “6. Lands and farms … called Douglas Water Lands” described in a disposition to the first pursuers, which was recorded on 16 May 1947.  It was conceded that none of the other exceptions were relevant for present purposes.  

[7]        The 1947 disposition is from Sir Windham Eric to the first pursuers and is dated 12 May 1947.  An extract of this disposition from the Scottish Records Office was available.  It describes the “Douglas Water Lands” as delineated in red on an attached plan and as having been part of the lands described also in the 1933 disposition (supra).  The Lands are called: (1) the lands and farms of Ponfeigh Place, Ponfeigh Townhead and Stoneyknowes; and (2) certain small lands at Douglas Water and Ponfeigh.  A copy of the relevant part of this plan, showing Muirfoot on the eastern boundary, is reproduced below:

[8]        It is not clear whether the extract plan is a colour copy or a black and white version upon which someone has sketched the red line.  A salient feature of the plan, when studied closely, is that the red boundary line stops short of Muirfoot Toll on both the north and south sides, thus making it unclear whether the boundary includes or excludes the disputed ground.  The pursuers were able to produce a photocopy of the manuscript copy of this deed in the Sasine Register.  It also has a plan attached.  It is much clearer but, unfortunately, in the copy made available to the court, it appears that someone has added certain red markings unconnected with the boundary.  In addition, the boundary line is indistinct in parts.  A copy of this plan is also reproduced below:

Once more, the boundary line at Muirfoot Toll appears to stop short at both sides of the cross roads.  However, there is at least a hint in the shading that the original line may have been drawn to the west of what appear to be buildings at the Toll, thus excluding the subjects from the conveyance.

[9]        A copy of the disposition from the Trustees of Sir Windham Robert to Sir Windham Eric dated and recorded as above in 1933 and 1934 was produced.  It is a photocopy of the manuscript version entered in the Sasine Registers.  Attempts have been made to enhance the quality of the narrative on the hard copy available for the court, but it remains illegible in large part.  The pursuers’ agents were able to provide a typed transcript of parts of this deed and the accuracy of that transcript was not disputed.  The disposition contains no map or plan upon which boundaries are drawn.  Rather it describes the many parcels of land, which are said to be within the estate conveyed, by general name, including, for example, the “twenty merk land of old extent of Pittinane”, the “fifty shilling lands of Crawford”, “the eight pound land of old extent of Grange, commonly called Inglisberry Grange” and so on.

[10]      After sundry of these descriptions, there are included “All and Haill the lands of Ponfeich with the houses, biggings and pertinents, all of the same”.  It is this description which the pursuers maintain carried the Muirfoot Tollhouse land to their predecessors in title.  It is critical to note that the defender did not dispute this in the sheriff court.  On the contrary, in his grounds of appeal to this court (para 13), he postulated that the Tollhouse land had been “carved out” of Sir William Eric’s title sometime after 1933 but before the defender obtained title to his own land from the same estate in 1944.

[11]      The first pursuers claim to hold a one half pro indiviso share of “Muirfoot Tollhouse” in terms of a disposition from the second pursuer dated 22 May and 22 June and recorded on 6 July, 2009.  This deed, rather unusually, narrates that doubt had been expressed about whether the subjects had been excluded from the 1947 disposition by Sir Windham Eric to the first pursuers.  It narrates that the first pursuers accept that the Tollhouse was not included in the 1947 disposition.  The 2009 disposition conveys to the first pursuers a one half pro indiviso share of “Muirfoot Tollhouse” as delineated on a plan, which undoubtedly includes the relevant subjects.  These subjects are, in turn, said to form part of the subjects conveyed in the 1933 disposition.

[12]      The defender avers that the Tollhouse land was not conveyed to the second pursuer in terms of the 1993 disposition.  Therefore, it is and was not owned by him and could not have been disponed by him to the first pursuers, to the extent of a one half share, in terms of the 2009 disposition.  The defender relies on the terms of his own title to the adjacent land, namely a Feu Charter of a “piece of ground at Muirfoot Toll” granted by Sir Windham Eric in favour of the defender’s immediate predecessor in title (Arthur Ramage & Sons) dated 16 and recorded on 17, February 1944. 

[13]      The bounding description in this deed narrates that the defender’s land is bounded partly on the southeast by “Muirfoot Toll belonging to Lanark County Council along which it extends following the curve one hundred and sixty two feet or thereby…”.  The boundary is otherwise defined by reference to the roads and to Stoneyknowes Farm, being part of the Carmichael Estate belonging to Sir Windham Eric.  The Muirfoot Toll is shown on a plan attached to the charter as containing two buildings to the north of the A70 Rigside to Lanark road with the disputed ground delineated by a curved boundary on its north western side.  On that basis, it is averred that it is “believed” by the defender that the land continues to be owned by the statutory successors of Lanark County Council.  A copy of this plan is reproduced below:

There is no averment specifying the source of any title which South Lanarkshire Council might now hold.  No motion has been made to intimate the action to that authority for their interest.

The decision of the sheriff
[14]      After debate, the sheriff upheld the pursuers’ preliminary plea to the relevancy and granted decree in terms of the first and second parts of the crave, for declarator that the defender had no right or title to the land and for removal.

[15]      The sheriff held that each of the pursuers had produced a prima facie title to the land.  In the case of the first pursuers, the title was constituted by the 2009 disposition.  Whatever the terms of the 1944 Feu Charter, no ambiguities existed in the 2009 disposition.  In the case of the second pursuer, his title was constituted by the 1993 disposition.  Even if the second pursuer’s title had not been prima facie valid, his concurrence in the litigation as a pro indiviso proprietor was not required because the defender had produced no competing title (Reid: Property; General Law; Co‒ownership; Possession in Stair Memorial Encyclopaedia, vol 18, paras 29 and 141; Lade v Largs Baking Co (1863) 2 M 17).  If the defender wished to challenge the pursuers’ titles, he had to produce a contradictory title (ibid, paras 141 – 143; Mather v Alexander 1926 SC 139 at 148, approved in Wills’ Trustees v Cairngorm Canoeing and Sailing School 1976 SC (HL) 30).  Otherwise, there was no onus on the pursuers to produce anything more than prima facie evidence of title.  For this purpose, there was no relevant distinction to be drawn between a prima facie title and a “legal title” (Colquhoun v Paton (1859) 21 D 996 at 1001).  

[16]      The defender had not pointed to any intrinsic or ex facie deficiency in the titles that would call their prima facie validity into question.  The defender had simply “believed” that the land belonged to the statutory successors of Lanark County Council.  He had not offered to prove the identity of the alleged competing owner, such as by reference to a title in favour of the Council, which might have justified further investigation into the pursuers’ titles (cf Lock v Taylor 1976 SLT 238; Drumalbyn Development Trust v Page 1987 SC 128).  He had admitted that he was unable to do so, despite extensive enquiry. 

The decision of the sheriff principal

[17]      The defender appealed to the Sheriff Principal on the basis, inter alia, that the sheriff had erred in her interpretation of Lock v Taylor 1976 SLT 238.  The Sheriff Principal was “content to adopt” the submissions of the pursuers in holding that the sheriff’s decision had been correct.  The defender’s pleadings did not seek to challenge the pursuers’ prima facie titles.  His case was that he “believed” that the land was owned by the successors of Lanark County Council.  However, the deeds referred to by him were not determinative of the position.  His belief was accordingly irrelevant.  There was nothing in the defender’s averments that would have allowed the sheriff, after proof, to declare that the pursuers had not established a prima facie title.  The defender had sought a proof before answer on the question of title, but there would be no evidence on the part of the defender to prefer. 

Submissions
Defender and appellant
[18]      The defender accepted the accuracy of the law as stated by Professor Reid (Stair Memorial Encyclopaedia supra at paras 141‒143 under reference to Mather v Alexander (supra)) that, where a defender denies the pursuer’s right to land without averring any right himself, the pursuer need show nothing more than a prima facie title.  There was an exception, where a defender averred that there was title on the part of a named third party (Lock v Taylor (supra)).  In 1944, the land had been owned by Lanark County Council.  The defender’s challenge was therefore the same as that advanced by the defender in Lock. 

[19]      In oral submission, the defender changed tack from the one in his ground of appeal (supra), that the subjects had been part of the land conveyed in the 1933 disposition, to one which involved a contention that the land had not been included in that conveyance at all.  The onus of proof lay on the pursuers to establish that the land was included in their titles.  The first pursuers’ title was evidenced by an “a non domino” disposition (the 2009 disposition) granted by the second pursuer.  The second pursuer’s title (the 1993 disposition) was contingent, in turn, upon the content of the parent title (the 1933 disposition).  There was no boundary description or plan attached to the 1933 disposition.  It was not clear whether the land had been included in it.  Subsequently, the plan attached to the 1944 Feu Charter had “acknowledged” that the granter did not have title to the land.  All that the defender required to do was raise an evidential basis for his contention that the title was held by a third party as distinct from the pursuers.  A proof was required to determine that issue.

Pursuers and respondents
[20]      The pursuers had produced titles to the land.  The defender accepted that they had at least done that, even if he had (wrongly) classified the 2009 disposition as “a non domino”.  That was good enough, given that one of two pro indiviso proprietors could pursue the action.  The defender offered no title to the contrary in himself or a third party (cf Lock v Taylor (supra)) nor any other right to be in occupation.  Some title trumped no title (Mather v Alexander (supra) at 148; Reid: Stair Memorial Encyclopaedia (supra) paras 142-3)).  Where one party had a prima facie title and the other had none, there was no need for a full proof of that title.  Lock had been wrongly decided in so far as it did not regard the pursuer’s title as an express grant and thus sufficient in itself.  Neither Mather nor Wills’ Trs v Cairngorm Canoeing and Sailing School 1976 SC (HL) 30 at 38 had been cited in Lock.  The defender had accepted that the disputed land had been “carved out” of the estate some time between 1933 and 1944.  Either the land had thereafter been conveyed to the first pursuers in the 1947 disposition or it had been left to be conveyed to the second pursuer in 1993.

Decision

[21]      Although the cause was sent to debate only on the pursuers’ plea to the relevancy of the defences, what was argued first was in effect the pursuers’ title to sue (ie the defender’s plea no 1).  That is certainly the correct order in which the pleadings ought to have been addressed.  It is first necessary for the pursuers to establish title to the land in question.  As Lord Anderson put it in Mather v Alexander 1926 SC 139 (at 149) “absence of title to defend cannot supply a defect in title to sue”.  Where a pursuer sues as owner he requires to “instruct a title as owner” (ibid at 150).  There is equal force in the Lord Justice Clerk (Alness)’s dictum (at 152) in his dissenting opinion that the establishment of the pursuer’s title is “always the first and essential step which a pursuer must take in proceedings such as these, if his title is challenged, as it is here”.

[22]      The Lord Justice Clerk differed from the majority (Lords Hunter, Ormidale and Anderson) in the extent to which a pursuer required to prove the validity of his title by, for example, not only producing the writ but also establishing subsequent prescriptive possession.  The majority considered that, where a defender produced no competing title, there was no need for a pursuer to do otherwise than produce an ex facie valid title to the land.  Lord Hunter (at 148) cited the dictum of Lord Kyllachy in Earl of Lauderdale v Wedderburn 1908 SC 1237 thus:

“…the pursuer is well justified in asking that he shall not be required to enter upon a competition of titles with the defender unless it appears either (1) that the defender has a good prima facie title on which to compete; or (2) that the defender having no such title, he (the pursuer) is himself in the same position.”

[23]      There is an obvious circular logic in this approach, given that, were the defender to have attempted to challenge the pursuers’ titles in an action for reduction of the relevant dispositions (which, significantly, he does not do), he would, no doubt, himself have been met with a successful plea of “no title to sue”.  In short then, Mather is authority for the proposition that, where a defender has no competing title to proffer, it is sufficient for the pursuer to produce an ex facie valid conveyance in his favour.  That is what the pursuers have done in this case.

[24]      The competing title, upon which a defender founds, may not be in his own favour.  It may demonstrate that the title rests with another (Lock v Taylor 1976 SLT 238).  In the present case, however, the defender does not advance any competing title.  All that he founds upon in his pleadings is a statement in his own titles (albeit under the authorship of the pursuers’ predecessor) that, as at 1944, the land in question was bounded by property then thought to be owned by Lanark County Council.  Such a description is not the equivalent of a title in favour of that Council.

[25]      There are two further significant features.  First, it is accepted that the defender has been unable to locate any conveyance in favour of the Council.  If such a deed existed, it ought, it may be thought, to have appeared as a result of a search in the records, which has presumably been undertaken.  Secondly, the defender has not sought to introduce the Council’s statutory successors into the action.  Yet, it may also be thought, they ought to be in a position to clarify whether there is any conveyance in their favour (cf Lock v Taylor (supra)).  Presumably the defender has either clarified the matter with South Lanarkshire Council or has chosen deliberately not to do so.

[26]      Exactly what may be regarded as an ex facie valid title in a pursuer’s favour may depend upon its particular terms.  In the present case, for example, the second pursuer maintains that his title depends upon the disposition in his favour dated 1993.  That disposition specifically conveys part of the estate disponed in 1933, under the exception of certain subjects designated in a schedule.  If it were clear, upon looking at the 1933 deed, that the land at Muirfoot Toll could not have been carried in the 1933 deed, because, for example, it related only to land in a different county, the ex facie validity of the title relative to the land in question may have been challengeable.  Equally, in relation to the second pursuer’s title as provided by the 2009 deed, even although that disposition has a plan bearing to convey the land as between the pursuers, it also has a specific reference to the land as forming part of the 1933 estate.  The same considerations, as might have attached to the 1993 deed, may have applied to the 2009 deed, were it obvious that the 1933 conveyance did not cover the Muirfoot Tollhouse land.

[27]      As matters stand, but no doubt subject to review in a competition with a third party should further dispositions be located, and using a necessary double negative in the circumstances, it cannot be said that the 1933 disposition did not carry the Muirfoot Tollhouse land.  It is noticeable that the defender himself accepted that it did do so in his written grounds of appeal (supra), even if he attempted to depart from that proposition in oral argument.  If the 1947 disposition later included the land, the first pursuers would have an ex facie valid title to it based on that deed.  If it did not, title would remain with the second pursuer based upon the 1993 and 1933 deeds; subject to his later conveyance of half of the land to the first pursuers in 2009.  Either way, the pursuers, or one or other of them, have an ex facie valid title which is good enough to pursue an action against a defender who advances no competing writ.

[28]      In these circumstances, the appeal from the Sheriff Principal must be refused.  The court will adhere to the interlocutor of the Sheriff Principal dated 9 June 2014 and the interlocutor of the sheriff dated 10 March 2014.