Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 10

 

A320/13

OPINION OF LORD JONES

In the cause

GEORGE HILL

Pursuer;

against

MARK MILLER LIDDELL HILL and OTHERS

Defenders:

Pursuer:  Wallace;  Allan McDougall

First Defender:  O’Rourke;  Drummond Miller LLP

15 January 2016

            Introduction

[1]        This action arises out of a dispute about the ownership of a house in Foxbar, Paisley (“the house”).  It was bought by the pursuer and his late wife (“Mrs Hill”) in 1989, “In consideration of the sum of £11,812.50 paid to us by George Hill and Agnes Hill”.  Title was taken in the name of the pursuer and Mrs Hill equally between them and to the survivor of them, and was registered in the Land Register of Scotland on 13 July 1989.  Mrs Hill died on 7 July 1991, and confirmation to her estate was obtained in the name of her executors nominate, the first and second defenders.  The first defender is the son of the pursuer and Mrs Hill.

 

The pursuer’s case on record
[2]        It is averred on behalf of the pursuer that, on 2 July 1991, Mrs Hill executed a codicil to her will, dated 22 June 1991, in which she purported to revoke the survivorship destination in favour of the pursuer.  A one‑half pro indiviso share of the house was included in the inventory of Mrs Hill’s estate for confirmation.  Following confirmation, the first and second defenders executed a formal nomination of entitlement to a one‑half pro indiviso share of the house in favour of the first defender as an individual.  On 4 March 1992, the first defender registered the nomination in the Land Register.

[3]        It is contended for the pursuer on record that Mrs Hill did not have the power to evacuate the survivorship destination in favour of the pursuer.  On the face of the deeds presented to the Commissariot of North Strathclyde at Paisley, the first and second defenders ought not to have been confirmed to the house.  Against that background, the pursuer seeks:

1.         Declarator that, on 7 July 1991, he “acquired a real right to the whole title” of the house, by operation of the survivorship destination in his favour;

2.         Declarator that the first defender is not and never has been in possession of the house;

3.         Declarator that, as from 4 March 1992, the proprietorship section of the Land Register title to the house was inaccurate “in respect of the inclusion of the first defender as a half pro indiviso proprietor”;

4.         Production and reduction of the “pretended confirmation”;

5.         Production and reduction of the nomination of the first defender to a one‑half pro indiviso share of the house; and

6.         An order ordaining the Keeper of the Registers of Scotland ”to rectify the inaccuracies in the Land Register for the County of Ayr” in respect of the house.

[4]        The pursuer’s first plea in law is to the effect that the first defender’s averments in answer are irrelevant and that decree should be pronounced de plano.  It is necessary, therefore, to consider the terms of the first defender’s pleadings.

 

The first defender’s case on record
[5]        The first defender avers, and the pursuer admits, that, by June 1991, Mrs Hill and the pursuer had separated and that their marriage had irretrievably broken down.  He avers that Mrs Hill no longer wished the pursuer to inherit her one‑half pro indiviso share of the house and, therefore, she willed her one-half share of the house to the first defender.  The first defender’s pleadings continue in the following terms:

“Esto Mrs Hill did not have power to evacuate the survivorship destination (which is denied) the pursuer’s action for reduction comes many years too late.  The pursuer is personally barred from now insisting upon the remedy of reduction.  The defender has in any event acted to his cost in the intervening years in respect of the (house).  He has in the knowledge of the pursuer paid bills, including repairs and Council tax.  The pursuer has accordingly acquiesced in the defender’s ownership.  In the intervening period of more than 20 years the pursuer has neither said nor done anything to challenge the first defender’s title.  Further, esto the pursuer had any right to the transmission into his own name of the deceased’s one-half pro indiviso share of the (house) (which is denied), that right has now prescribed.”

 

The first defender refers to and quotes the terms of section 8 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).

[6]        It is also contended on behalf of the first defender that, if the pursuer’s right under the survivorship clause was imprescriptible as the pursuer avers:

“that right was rendered extinct by operation of ten year positive prescription in favour of the first defender.”

 

The first defender refers to and quotes the terms of section 1 of the 1973 Act which, so far as is relevant to this case, provides that, if land has been possessed by any person:

“for a continuous period of ten years openly, peaceably and without any judicial interruption”

 

and the possession was founded on, and followed registration of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in that land:

“then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge.”

 

[7]        In furtherance of the defender’s case in reliance on section 1 of the 1973 Act, it is averred that he has had “qualifying possession” of the house for more than the relevant period of ten years provided for within section 1(1) of the 1973 Act.  It is averred that such possession followed the registration of a deed sufficient in its terms to constitute a real right over the house in his favour.  About 18 months prior to the death of Mrs Hill, the pursuer left the house and went to reside on the Isle of Tiree, leaving Mrs Hill, the first defender, and his brother to reside in the house without any financial assistance.  Mrs Hill did not work, because of ill‑health.  The first defender entered employment in 1989 and, from his income, “managed to continue to pay the mortgage” over the house.  Certain other payments are averred.  A few days before the death of Mrs Hill, the pursuer unexpectedly returned to the house.  He moved back in.  The first defender continued to pay council tax and “provided the pursuer with contributions to the housekeeping for food and utility bills.”

[8]        There then follow these averments:

“Within six months of his return, the pursuer stopped making housekeeping arrangements.  He stopped paying utility bills.  He stopped purchasing any food.  The pursuer would routinely leave the (house) for up to 6 weeks at a time to work on Tiree.  The first defender was left to maintain the household and his brother from his own employment income.  The first defender’s relationship with the pursuer deteriorated thereafter due to the pursuer’s chronic neglect of his responsibilities.  The first defender continued to live at the (house) until about 1995 when he left due to the pursuer’s abusive behaviour.  He paid the Council tax bills for a period of four years until 1995.  He continued and continues to have access to the (house).  He had keys up until his younger brother paid £8,000 for replacement doors and windows.  His younger brother then provided him with a new set of keys.  Between 2001 and 2010 there was no communication at all between the pursuer and the first defender.  The first defender agreed to meet the pursuer in 2010.  The pursuer told the first defender that he had moved out of the (house) and was living with his partner.  He told the pursuer that he occasionally visited the (house) in order to check (it).  The pursuer and the first defender discussed clearing out the (house) and putting (it) up for sale.  They agreed to do so and agreed a date to start the process.  The pursuer arranged for one week’s holiday from work in order to clear out the (house).  On entering the (house), the first defender was astonished to find (it) in an appalling state of neglect and disrepair.”

 

The first defender avers that, in the whole circumstances, he had “no option” but to seek division and sale of the house.  It is averred by the pursuer and admitted by the first defender that there is an action of division and sale at the instance of the first defender presently pending before the Sheriff Court at Paisley.

[9]        The case came before the court for a hearing on the procedure roll on 3 June 2015.

 

Submissions for the first defender
[10]      Mr O’Rourke, who appeared for the first defender, opened his submissions by referring to the decision in Perrett‘s Trustees v Perrett 1909 SC 522 (“Perrett’s Trustees”).  Counsel accepted that Perrett’s Trustee is authority for the proposition that the special destination in this case “all other things being equal, falls to be applied”.  He submitted, however, that there is a question as to whether Perrett’s Trustees is still good law.  In what I take to be in a reference to section 19 of the Family Law (Scotland) Act 2006 (“the 2006 Act”), Mr O’Rourke said that legislation now provides that a special destination in favour of a spouse is not effective after divorce.  There remains what counsel described as “this rather isolated set of circumstances” where parties have separated, but are not divorced.  A case of that type would be governed by Perrett’s Trustees.  Mr O’Rourke observed that the decision in Perrett’s Trustees is noted in Westlaw UK to have attracted “mixed or mildly negative judicial treatment”.  If one follows through the cases over the years, said counsel, it is clear that there is at least some question as to just how sound the decision is in Perrett’s Trustees.

[11]      Leaving Perrett’s Trustees to one side, Mr O’Rourke explained that the action is defended on the basis of three alternative arguments.  The first is that, even if the transfer to the first defender of Mrs Hill’s one‑half joint pro indiviso share of the house was wrongful, given the existence of the special destination, his title amounted to an a non‑domino disposition and, on the foundation of that disposition, there has been ten years open, peaceable and uninterrupted possession.  I refer to that as “the section 1 case”.  The second argument is that, as counsel put it, the pursuer is:

“personally barred from insisting in the conclusions of the action as a result of mora, taciturnity and acquiescence” (“the acquiescence case”).

 

The third contention advanced on behalf of the first defender is that the pursuer’s right to the remedies which he seeks has been extinguished by the passage of 20 years since that right became exercisable or enforceable, no relevant claim in relation to it having been made (“the section 8 case”).

[12]      During the course of his submissions, Mr O’Rourke came to the realisation that his section 8 case was ill‑founded, for reasons that it is unnecessary to record in this opinion, and departed from it.  Counsel accepted that it would be necessary to hear evidence before the court could find either the acquiescence or the section 1 cases established.

[13]      Mr O’Rourke drew my attention to certain of the first defender’s averments to the effect that, if the pursuer is entitled to reduction, he has been unjustifiably enriched at the expense of the first defender.  It is averred that the amount of that enrichment is £10,000 and that the first defender is entitled to be recompensed to that extent.  Mr O’Rourke expressed the view that, technically, it would be necessary to have a counterclaim in order to recover that sum from the pursuer, and asked the court to allow him the opportunity to amend in the event that both his acquiescence and section 1 cases were held to be irrelevant.

[14]      At the conclusion of his submissions, Mr O’Rourke, somewhat tentatively, invited me to report the case to the Inner House for a ruling on whether or not, in the circumstances of this case, “Perrett’s Trustees continues to be good law.”  In that regard, Mr O’Rourke referred to the provisions of Rule of Court 34.1.

 

Submissions for the pursuer
[15]      Mr Wallace, who appeared for the pursuer, invited me to sustain the pursuer’s first and second pleas‑in‑law, which are pleas to the relevancy of the first defender’s averments in answer, to repel the first defender’s pleas‑in‑law and to grant decree in terms of the pursuer’s first, third, fourth, fifth and sixth conclusions, which are set out in paragraph [3] of this opinion.

[16]      Counsel said that there was no issue between the parties about the form in which Mrs Hill purported to evacuate the special destination.  Where it is competent to do so, a special destination may be evacuated in the manner prescribed by the terms of section 30 of the Succession (Scotland) Act 1964.  In that context, Mr Wallace referred to number 6/2 of process, the disposition of the house in favour of the pursuer and Mrs Hill , and to number 6/4 of process, the codicil to Mrs Hill’s will.

[17]      Counsel contended that the first defender’s averments in support of his section 1 case are irrelevant.  He began by noting that the terms of section 1(1) were amended by the provisions of the Land Registration (Scotland) Act 2012, with effect from 8 December 2014.  Prior to that date, where the relevant possession was founded on the registration of a real right in the land in question in the Land Register, such registration had to be:

“subject to an exclusion of indemnity under the provisions of the Land Registration (Scotland) Act 1979”

 

in order to qualify for exemption from challenge.  Mr Wallace contended that the reference to the exclusion of indemnity was considered to be a drafting error and was corrected by amendment, such that section 1(1) of the 1973 Act now provides that possession may be founded on:

”the registration of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in that land or land of a description habile to include that land.”

 

In this case, it is averred and admitted that indemnity was not excluded.  In these circumstances, argued counsel, the first defender’s section 1 case cannot succeed, and should not be remitted to probation.

[18]      In any event, looking to the detail of the first defender’s averments in support of his section 1 case, Mr Wallace contended that, not only had the first defender failed to aver continuous possession for a period of ten years, certain of his averments were to a contrary effect.  It is averred on behalf of the first defender, for example, that he left the property before 1995, since when he has had “access” to it.

[19]      Turning to the first defender’s acquiescence case, counsel referred to Johnson: Prescription and Limitation 2^nd Edition at chapter 21.03.  There the author quotes the following passage from McLaren’s Court of Session Practice:

“The latter [the plea of mora, taciturnity and acquiescence] must be supported by an averment of facts and circumstances inferring prejudice or acquiescence, and it is a plea to the merits and not a dilatory plea.”

 

There must be prejudice caused by the delay, argued Mr Wallace.  It is not enough, he contended, to say that the first defender paid council tax which he would otherwise not have paid.  Counsel submitted that the pursuer has not averred enough to enable him to establish that the pursuer has “given up” his right of ownership of the house.

[20]      Mr Wallace concluded his submissions by contending that the first defender’s averments in his unjustified enrichment case are irrelevant.  In support of that contention, counsel referred to Gloag and Henderson: The Law of Scotland 13^th Edition, at paragraph 24.02, and Walker:  The Law of Civil Remedies in Scotland, at page 289.  Counsel founded, in particular, on the expression of view in Walker that:  “Error is essential to a successful claim of recompense”, and submitted that the first defender’s pleadings contain no averment of any error on his part.

 

Submissions in reply for the first defender
[21]      In response, Mr O’Rourke submitted that, while his pleadings on unjustified enrichment were “fairly bald”, they should be read in the context of other averments by the first defender about such things as his discussions with the pursuer as to whether the house should be sold, improvements to it that were carried out, etc.  Counsel said that he accepted that it is necessary in a case of unjustified enrichment to aver error, and that there are no such averments in the first defender’s pleadings.  Mr O’Rourke sought to amend his pleadings at the bar, to reflect what he said was an inference that might be drawn from the first defender’s pleadings to the effect that the first defender made payments in the belief that he was a joint pro indiviso owner of the house.

[22]      On the question of whether the court should apply the terms of section 1 of the 1973 Act as they stood before 8 December 2014 or after, counsel submitted that the law should be applied as it now is.

 

Decision and reasons
Did Mrs Hill’s codicil operate to revoke the special destination?
[23]      In Perrett’s Trustees, by trust-disposition and settlement a testator revoked all settlements of testamentary nature made by him “at any time heretofore” and conveyed the residue of his estate to trustees.  He died possessed of, among other things, a house, of which the disposition was in favour of the testator and his wife “jointly, and the survivor of them, and the heirs of the survivor and their assignees whomsoever.”  It was recorded in the disposition that the purchase price was contributed equally by Mr Perrett and Mrs Perrett and, in the special case which was brought before the Inner House, the parties were agreed that that was correct.  In the course of his opinion, the Lord President (Dunedin) narrated the terms of the survivorship provision and noted that each spouse contributed one‑half to the purchase of the property.  His Lordship continued as follows:

“I think that was a contractual arrangement where each took the chance of getting the half of the other, and accordingly I think that the property stands upon its own destination and is not carried, and could not be carried, by any testament whatsoever.  The moment that disposition was mutually delivered, as it was by the mere fact of taking the destination as between these two people, I do not think this destination could have been altered except by joint consent of the spouses.”

 

[24]      Lord Kinnear agreed with the Lord President, adding that he did so:

“… because that property formed no part of Mr Perrett’s estate at his death, and therefore could not fall under his trust-disposition and settlement.  I take it to be perfectly well settled law that when a right is taken to two persons jointly, and the survivor and the heirs of the survivor, the two disponees are joint fiars during their lives, but upon the death of the first deceaser the survivor has the entire fee to the exclusion of the heirs of the predeceaser.  The law is so laid down in every one of our institutional writers, and is supported by the authorities, and the rule applies to joint fiars who are husband and wife in exactly the same way as to other persons.”

 

[25]      In this case, on the face of the disposition of the house, the purchase price was paid by the pursuer and Mrs Hill, and it was disponed to them “equally between them and to the survivor of them”.  The disposition is silent as to the amount of any contribution to the purchase price.  In these circumstances, this case is distinguishable from Perrett’s Trustees on that point because, in the latter, the disposition narrated that the purchase price of £835 was contributed equally by the spouses.  The question that arises is as to the consequence, if any, of that distinction.

[26]      Some assistance may be gained by a consideration of cases in which Perrett’s Trustees was followed.  In Chalmers’s Trustees v Thomson’s Executrix 1923 S C 27 (“Chalmers’s Trustees”), a house was:

“sold and disponed to and in favour of the said Miss Anne Chalmers and Miss Charlotte Susan Chalmers, equally between them, and the survivor of them, and the heirs and assignees of the survivor, but exclusive of assignees before these presents are recorded in the Register of Sasines, the house No.  3 St Swithin Street, Aberdeen."

 

The consideration was recorded as:

“the sum of one thousand two hundred and sixty pounds sterling instantly paid to me, and of the feu-duty hereinafter stipulated to be paid to me by Miss Anne Chalmers and Miss Charlotte Susan Chalmers, both residing in Aberdeen.”

 

The warrant of registration read as follows:

"Register on behalf of Miss Anne Chalmers and Miss Charlotte Chalmers, both residing in Aberdeen, in (the) Register of the county of Aberdeen." 

 

[27]      One of the questions which fell to be decided by the court was whether the terms of the feu disposition were such as to preclude Anne Chalmers, who predeceased her sister, from defeating the special destination by testamentary disposition.  Referring to the submission of counsel for Charlotte’s representatives, that the terms of the disposition precluded revocation, the Lord Justice‑Clerk (Alness) said:

“Having regard to the decision in Perrett’s Trustees v Perrett, and to the opinions of Lord Dunedin and Lord Kinnear in that case, I am of opinion that this contention is unanswerable.”

 

Lord Hunter quoted the passage from the opinion of the Lord President which is set out at paragraph [23] of this opinion and expressed the view that, on the authority of the decision in Perrett’s Trustees, the argument advanced by counsel for Charlotte’s representatives was “sound”.  Lord Anderson approached the question in a different way, asking whether the destination was contractual or testamentary.  His Lordship said that the case of Perrett’s Trustees:

“has decided that such a destination is contractual, and incapable of being evacuated by the testament of the predeceaser.”

 

It is to be noted that, in Chalmers’s Trustees, as in this case, the purchase price was narrated as having been paid by both disponees, but, also as in this case, no mention was made in the disposition of the amount of the contributions.

[28]      One of the decisions which may have prompted the Westlaw comment about Perrett’s Trustees having received mixed or mildly negative judicial treatment is Hay's Trustee v Hay's Trustees 1951 S C 329 (“Hay's Trustee”).  In that case, the disposition of a heritable property narrated that the price had been paid by a husband and wife and conveyed the subjects to the spouses:  “and to the survivor of them and to their or his or her heirs and assignees whomsoever”.  After the disposition had been recorded on behalf of both spouses, the wife died, leaving a trust‑disposition and settlement whereby she disponed to trustees her whole means and estate “including all means and estate held by me at my death under special destinations.”  Thereafter the husband died.  Their respective trustees brought a special case to determine the effect of the wife’s trust-disposition, in which it was agreed that, contrary to the narrative in the disposition, the whole price had been provided by the wife.  Once again, no mention was made in the disposition of the amount of the contributions made to the purchase price by the disponees.

[29]      On the question whether Perrett’s Trustees is or is not “good law”, it is instructive to notice what the Lord President said:

“The argument [as to whether the special destination had been revoked by the testamentary disposition] involves a consideration of a tract of familiar cases, beginning with Perrett's Trustees and ending in Brown's Trustee, and I am bound to confess that I view with some uneasiness the progressive development of the law in these cases, because it seems to me that the reasons for the decisions have not always been formulated with as much precision as is to be desired, and that the Courts are stage by stage drifting further and further away from the foundation feudal principles upon which the whole doctrine should rest.  If there is an argument in favour of the contention that Mrs Hay was powerless to evacuate the survivorship destination quoad her half of the subjects, that argument must rest upon the view (chiefly associated with Perrett's Trustees), that the transaction by which the subjects were acquired was affected with a contractual element of such a character as to impress upon the survivorship destination something of the quality of a mutual will, which she could not subsequently affect or alter by her general testamentary disposition.  Now, if we had nothing before us but the narrative in the disposition, the case would be very near Perrett's Trustees  and the conclusion might be justified that the spouses (and I stress the fact that at the material time they were not strangers but spouses) had come to a contractual arrangement under which each took the chance of acquiring by survivance the share of the other.  But then we have been told in the case that the narrative is false, and the question, which I have not found too easy, is whether we have to carry this tract of law one stage further by admitting extrinsic evidence, not for the purpose of supplementing the information derived from an examination of the documents, but for the purpose of contradicting that information and the inferences which would naturally follow from it.  I should welcome an opportunity in a suitable case of having this whole tract of decisions examined by a higher Court.  But, taking them as they stand, I am prepared, though with considerable hesitation, to affirm the view that the facts as found in the case are sufficient to exclude a contractual element, and that, since Mrs Hay provided the subjects and in effect donated a half share in them to her husband and retained a half share to herself, she was free by inter vivos or mortis causa deed to evacuate the survivorship destination so far as regards her own half of the property at any time she wished.”

 

[30]      Taking all of these cases together, it is clear, in my opinion, that the narrative in the Perrett’s Trustees disposition that the purchase price had been contributed equally by the spouses was not critical to the decision that the special destination was contractual and not testamentary.  In neither Chalmers’s Trustees nor Hay’s Trustee was there such a narrative.  In Chalmers’s Trustees, however, the court regarded the facts of the case as being on all fours with those of Perrett’s Trustees.  The disposition in Hay’s Trustee was, in all material respects, in the same terms as that in Chalmers’s Trustees and, were it not for the agreed fact that the narrative in the disposition was false, the Lord President would have regarded the facts in the former as being “very near” those in the latter which “might” justify the same result.

[31]      In this case, apart from the narrative in the disposition that the purchase price was paid by both spouses, the pursuer avers that the whole of the consideration was provided by him, and that he paid all the mortgage payments.  That is denied by the first defender, but he makes no contrary averment.  That is important when considering the relevancy of the first defender’s answers, because this case stands to be decided at this stage, therefore, on the basis that the narrative in the disposition is factually correct.  That being so, and applying the principle underlying both Perrett’s Trustees and Chalmers Trustees, the first defender has stated no relevant defence to the proposition that the terms of Mrs Hill’s codicil did not operate to revoke the special destination. 

[32]      I decline Mr O’Rourke’s invitation to report this case to the Inner House, for the reasons given by the members of the court in Shand’s Trustees v Shand’s Trustees 1966 SC 178, in which Perrett’s Trustees again fell to be considered, this time by the Second Division.  The second parties to the special case which was brought submitted that Perrett’s Trustees was “bad law” and should be reconsidered.  In expressing his rejection of that submission, the Lord Justice‑Clerk (Grant) said this:

“The first argument in favour of this course was, in effect, that that decision was a bastard child lacking precedent, principle and legitimacy.  On this particular matter I find myself in agreement with Lord Dunedin's dicta in Perrett's Trustees…  [See paragraph [23] of this opinion.]  His reasoning in that case appears to me to be convincing both in logic and in law…  Perrett's Trustees was founded on, referred to in detail in the opinions without adverse comment, and followed as a binding authority in the Second Division in Chalmers's Trustees v Thomson's Executrix.   It has stood as an apparently unchallenged authority for nearly sixty years.  It was also referred to, and, in a wider context perhaps, followed in Renouf’s Trustees v Haining; and in Taylor's Executors v Brunton the First Division refused to have Renouf reconsidered.  Perrett's Trustees was referred to in argument, but the criticism made appears to have been not that it had been wrongly decided, but that it had been wrongly understood...  It is true that in Hay's Trustee v Hay's Trustees Lord President Cooper (at p.  334) adumbrated, but adumbrated only, the question of having the opportunity, in a suitable case, of having " this whole tract of decisions " (by which I understand him to mean the decisions from and including Perrett's Trustees) examined by a higher Court.  It appears however from the report that, although he wished to include a contractual element, he excluded it, on the authorities, only with considerable hesitation…  In my opinion, if there are any deficiencies in the tract of decisions referred to, they are to be looked for, not in such cases as Perrett's Trustees and Chalmers's Trustees but elsewhere.  I can see no grounds for reconsidering Perrett's Trustees.   I agree entirely with Lord Dunedin's ratio decidendi therein, and that ratio governs in my opinion the answers to all the questions asked in this case.”

 

Lord Strachan agreed, and Lords Wheatley and Walker delivered concurring opinions.

[33]      The fact that the law was altered by the provisions of the 2006 Act does not assist Mr O’Rourke.  The Scottish Parliament must have had in mind the rule in Perrett’s Trustees when enacting section 19.  It was open to it to provide for cases such as this, where parties have separated and their marriage has irretrievably broken down, but they have not divorced.  The Parliament chose not to do so and that choice cannot be frustrated by a decision of the court.

 

Has the first defender relevantly averred a section 1 case?
[34]      In order to plead a relevant section 1 case in answer to a challenge to a real right relating to particular land, it is necessary to aver, among other things, possession of that land for a continuous period of ten years.  The first defender in this case has failed to do so.  The deed on which he founds was registered on 4 March 1992.  The first defender avers that he continued to live at the house “until about 1995”.  He avers that he continued and continues to have access to the house, but gives no specification of how, when or in what circumstances such access was ever exercised.  He refers to having had keys until his younger brother paid for replacement doors and windows, but he does not say when, or in what circumstances, that was done.  The first defender’s section 1 case is bound to fail.

[35]      I am not persuaded that I am entitled to judge the relevancy of the first defender’s pleadings in support of his section 1 case by having regard to the terms of legislation which was superseded in December 2014.  Mr Wallace cited no authority in support of that contention, and Mr O’Rourke cited no authority to contradict it.  No mention was made of section 120(1) of the Land Registration etc.  (Scotland) Act 2012, which provides that the amendments to the 1973 Act made by schedule 5 to the 2012 Act:

“do not apply in relation to a continuous period which has expired before the designated day”.

 

The amendment to section 1 of the 1973 Act is such an amendment.  It may be that something could be inferred from section 120(1) about the Scottish Parliament’s intention as to the application of the amended section 1, in circumstances such as those that obtain in this case.  I was not referred, either, to section 16 of the Interpretation Act 1978, which makes express provision in respect of the repeal of enactments.  In the absence of any argument beyond assertion by either party as to whether or not the granting of indemnity in respect of the first defenders’ title has any relevance to the section 1 argument it is, in my view, inappropriate for me to attempt to decide that issue.

 

Has the first defender relevantly averred an acquiescence case?
[36]      The elements of the plea of mora, taciturnity and acquiescence are identified in the decision of an Extra Division of the Inner House in Portobello Park Action Group Association v City of Edinburgh Council 2012 SLT 1137:

“[13J For the plea of mora, taciturnity and acquiescence to be sustained, all three elements must be present (Somerville v Scottish Ministers at 2007 S.C., p.182; 2007 S.L.T., p.120, para.94).  The court must have regard to all the circumstances of the case (Somerville, p.182 (p.120) para.94). 

 

[14J Whether the passage of time amounts to mora is a question of fact and degree.  As Lord Glennie noted in United Co-operative Ltd v National Appeal Panel for Entry to the Pharmaceutical Lists, 2007 S.L.  T., p.841 , para.30: ‘Mora simply means delay beyond a reasonable time.  What is a  reasonable time will depend on all the circumstances ...  In  assessing what is a reasonable time, account must, of course, be taken of the complexity of the matter, and the need to take advice, gather information, and draft proceedings.  In some cases, this will require considerable time ...  .’

 

Similarly in Somerville v Scottish Ministers, p.181 (p.120) para.92, it was explained that: ‘The plea [of mora, taciturnity and acquiescence] is necessarily protean and it must depend on the particular circumstances of the case whether or not its requirements are satisfied.  There may be cases where the passage of time, as related to the surrounding circumstances, may be such as to yield the inference of acquiescence in the decision in question ...  The petitioner may, however, be in a  position to put forward an explanation for the delay sufficient to rebut the inference.’

 

[15J Taciturnity has been defined (United Co-operative Ltd, p.  841, para.32) as: ‘...  a failure to speak out in assertion of a right or claim when a reasonable person in that position would be expected to speak out.’

 

[16] As for acquiescence, we again refer to United Co-operative Ltd, at p.842, para.  33: ‘Acquiescence simply means assent to what has taken place.  The enquiry is not a subjective one to be answered by looking into the mind of the petitioner.  The test is objective.  Acquiescence requires to be inferred from the petitioners' inaction and silence.  The question is how the matter would have appeared to a reasonable person observing the petitioners' conduct, knowing of all the circumstances of which the petitioners knew or ought to have known when acting in the way they did.’” 

 

[37]      With that analysis in mind, I am satisfied that the first defender has wholly failed to plead a relevant case of acquiescence in this action.  The context in which he attempts to do so is that the pursuer has a real right of ownership of the house, having acquired Mrs Hill’s joint pro indiviso share immediately on her death.  The first defender’s title has always been open to challenge, and will remain so unless and until he has continuous possession of it openly peaceably and without judicial interruption for ten years.  The first defender avers that the pursuer was aware that he had “become owner of Mrs Hill’s half share” of the house, but that cannot be a foundation for an acquiescence case because, whatever the pursuer may have thought or believed, the first defender did not, in fact, become owner of that half share.  Consequently, a “reasonable time” within which to take action against the first defender did not begin to run until the pursuer had reason to do so.  Such reason did not emerge until the first defender raised an action of division and sale in Paisley Sheriff Court.  The first defender does not offer to prove that any delay between the raising of that action by him and the raising of this action by the pursuer amounts to the requisite mora.

[38]      I am, therefore, satisfied that, even if the first defender were to establish all of his averments after proof, he would fail in his acquiescence case.

[39]      Further, if the first defender’s averment about the pursuer’s awareness was intended to mean that he was aware that Mrs Hill had purported to revoke the special destination, that the executors had sought confirmation on an estate which included her one‑half joint pro indiviso share of the house and that they had granted title to that share to the first defender, it would have been incumbent on him to specify the circumstances in which the pursuer had such actual knowledge.  The first defender has not done so.

 

The first defender’s averments on unjustified enrichment
[40]      Mr O’Rourke accepted that his pleadings on unjustified enrichment are irrelevant, and he invited me to give him an opportunity to amend, in the event that I held against him on the section 1 and acquiescence cases.  Accordingly, I shall allow the first defender 14 days from the issuing of this opinion to enrol a motion to lodge a counter-claim and to amend his pleadings in respect of the unjustified enrichment case, if so advised.  I shall sustain the pursuer’s third, fifth, sixth and seventh pleas‑in‑law and grant declarator in terms of the first, third, fourth, fifth and sixth conclusions and reserve all questions of expenses.