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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> JOHN NICHOLAS ANDREW LUBBOCK & ROBERT CHEYNE TURCAN AS TRUSTEES OF THE ELLIOT OF HARWOOD TRUST v. ROBIN FEAKINS & THE KEEPER OF THE REGISTERS OF SCOTLAND [2012] ScotSC 21 (17 February 2012)
URL: http://www.bailii.org/scot/cases/ScotSC/2012/21.html
Cite as: [2012] ScotSC 21
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SHERIFFDOM OF LOTHIAN AND BORDERS AT JEDBURGH
Court Ref: AJ99/10
JUDGMENT OF
Sheriff DANIEL KELLY QC
in the cause
JOHN NICHOLAS ANDREW LUBBOCK and ROBERT CHEYNE TURCAN as Trustees of the ELLIOT OF HARWOOD TRUST
PURSUERS
against
(FIRST) ROBIN FEAKINS and (SECOND) THE KEEPER OF THE REGISTERS OF SCOTLAND
DEFENDERS
________________________
Act: Turcan Connell, Solicitors, Edinburgh; Alt: J.A. Brown, Advocate, Smail & Ewart, Solicitors, Biggar.
JEDBURGH 17th February 2012
The Sheriff, having resumed consideration of the case:
FINDS IN FACT:
1. Clocker Lodge, otherwise known as Harwood Lodge and The Clocker and referred to herein as "the Lodge", with its surrounding garden ground extending to about 662.2 square metres, lies at Harwood, near Bonchester Bridge, Hawick.
2. A Minute of Agreement was entered into (registered in the Books of Council and Session on 14th February 1997) whereby the Trustees of the Elliot of Harwood Trust ("the Trustees") awarded Georgina Lauder the liferent use of the Lodge, she having gained entry to it in July 1996.
3. In 2002 Andrew Lubbock, the Andrew Lubbock 1991 Trust, the Elliot of Harwood Trust and Hamish Lubbock, the heritable proprietors of the Harwood Estate, decided to sell the Estate under exception of Harwood Mill and the Lodge.
4. In 2002 FPD Savilles, Estate Agents, received instructions to market and sell Harwood House and its Estate under exception of Harwood Mill and the Lodge, the former being retained as the residence of Andrew Lubbock and the latter as the residence of Miss Lauder. Savilles went about marketing the Estate under exception of Harwood Mill and the Lodge. Savilles prepared draft Sales Particulars and a computerised plan of the Estate for sale. The draft Sales Particulars contained a Summary of Accommodation narrating Lots 1 to 8 for sale as a whole or in lots. Fifteen properties were named in the Summary of Accommodation but neither Harwood Mill nor the Lodge were listed there.
5. In 2002 the Trustees and the other heritable proprietors gave instructions to their solicitors, Messrs. Turcan Connell, to sell the Estate under exception of Harwood Mill and the Lodge to Robin Feakins. The solicitors for the Trustees and the other heritable proprietors went about conveying the Estate under exception of Harwood Mill and the Lodge to Robin Feakins.
6. By fax dated 15th August 2002 Messrs. Turcan Connell expressly advised Messrs. Smail & Ewart, the solicitors for Mr Feakins, that "Clocker Lodge" and Harwood Mill were not to be included in the subjects to be sold. Paragraph 5 stated:
"Clocker Lodge, Harwood was conveyed by Andrew Lubbock's 1991 Trust Trustees to the Elliot of Harwood Trust by Disposition recorded 2nd October 1996. Clocker Lodge and Harwood Mill are not to be included in the sale of the Estate."
7. Mr Feakins knew the Lodge as Harwood Lodge. A sign displaying that name was affixed to its front gate. He had been informed that the Lodge was occupied by the former housekeeper to Baroness Elliot as a liferenter but otherwise believed that it was within the subjects that he was buying.
8. By Missives dated 18th July 2002 and 29th and 30th August 2002 the Trustees and the other heritable proprietors (therein designed as "Andrew Lubbock and Others") agreed to sell and Mr Feakins agreed to purchase the parts of Harwood Estate described in the Missives and shown on a plan annexed to the Missives. The Lodge lay under the red line on the Plan annexed to the Missives and was included in the subjects which were agreed to be conveyed. The word "Lodge" was within the red boundary on the Plan and related to the Lodge.
9. Andrew Lubbock, the Andrew Lubbock 1991 Trust, the Elliot of Harwood Trust and Hamish Lubbock executed a Disposition in favour of Robin Feakins relating to Harwood Estate as therein described as being delineated and coloured red on the plan annexed, which Disposition was registered in the Land Register of Scotland on 19th December 2002. The Lodge lay under the red line on the Plan annexed to the Disposition and was included in the subjects conveyed. The word "Lodge" was within the red boundary and denotes the Lodge.
10. In the Land Certificate Title Number ROX4028 the Lodge and the road adjacent to it were plotted as being within the subjects which were transferred. The Land Register for Scotland accurately recorded the unintentional conveyance of the Lodge by the Trustees to Mr Feakins.
11. The Trustees understood that the Lodge had been excluded from the sale of the Estate and that they continued to own it. Since 1997 and continuing thereafter notwithstanding the sale the Trustees have insured the Lodge and have paid for repairs of and maintenance to the house. When he acquired the Estate Mr Feakins took over the insurance policy for the whole Estate which extended to the Lodge and, in the belief that he owned it, continued to insure the Lodge. In 2003 Mr Feakins took legal advice and thereafter removed the Lodge from the insurance cover when advised that he was under no obligation in terms of a liferent to insure it. In November 2009 Mr and Mrs. Feakins called at a mutually arranged time on Miss Lauder. During the discussions Mr Feakins told Miss Lauder that he owned the Lodge. Until that visit Miss Lauder had thought that the property was owned by the Trustees and that she occupied the Lodge by virtue of a liferent agreed with them. When the Trustees learnt from this visit that ownership of the Lodge was in issue their solicitors took the matter up with Mr Feakins' solicitors. Since his visit in 2009 Mr Feakins has again insured the Lodge. Mr Feakins has taken no steps to disturb Miss Lauder's occupation of the Lodge.
12. Mr Feakins lives in Harwood House and he and his family farm the Estate. The road outside the Lodge, which is the only access into Harwood, is in daily use for that purpose. The hedgerows on either side of the Estate roads are maintained by Mr Feakins' family.
FINDS IN FACT AND LAW:
1. The subjects in respect of which Mr Feakins is the registered proprietor identified in Land Certificate Title Number ROX4028 include the Lodge.
2. The subjects of which Mr Feakins is in possession at Harwood Estate include the Lodge.
THEREFORE:
1. Upholds the First Defender's second and third Pleas-in-Law and assoilzies the First Defender.
2. Finds the Pursuers liable to the First Defender in respect of the expenses of the action and certifies the cause as suitable for the instruction of Junior Counsel.
NOTE
The issue
(1) These proceedings concern whether or not a house was transferred in the sale of an estate, a matter not raised at the time nor even shortly afterwards, it not being until some years later that the uncertainty as to its ownership emerged. The Trustees seek to have the matter resolved by craving a declarator that the subjects were not included in the property transferred and an order that the Land Register be "rectified" accordingly. The Keeper of the Registers of Scotland did not enter the proceedings.
(2) It is worth quoting the terms of the Declarator which is sought, not least since it is a substantial addition that is proposed to be made to the Disposition in length, in import and in incidental arrangements:
"For declarator that the subjects known as Clocker Lodge, comprising ALL AND WHOLE the area of ground in the County of Roxburgh shown delineated in red on the plan annexed and signed as relative to the Disposition by the trustees of Andrew Lubbock's 1991 Trust in favour of the then trustees of The Elliot of Harwood Trust dated 16th and 25th September 1996 and recorded in the Division of the General Register of Sasines for the County of Roxburgh on 2nd October 1996, which area of ground formed part of the subjects described in the Disposition by Thomas Robert Barnewall Elliot of Clifton in favour of William Elliot dated 8th May and recorded in the Division of the General Register of Sasines for the County of Roxburgh on 11th June both 1924; together with (ONE) the dwellinghouse known as and forming Clocker Lodge, Harwood, and the whole other buildings and erections on the said area of ground, and the heritable fixtures and fittings therein and thereon; (TWO) a heritable and irredeemable servitude right of access to and egress for pedestrian and vehicular traffic to the subjects over the road marked "ACCESS ROAD" on the plan annexed and signed as relative to the said Disposition by the trustees of Andrew Lubbock's 1991 Trust, and over the entrance way leading therefrom; (THREE) a heritable and irredeemable servitude right to use, maintain, repair and if necessary replace the septic tank shown marked "Septic Tank" on the said plan, and any soakaway and outfall drains relative thereto with all necessary rights of access thereto subject to making good any surface damage caused by the exercise of the said rights; (FOUR) the whole parts, privileges and pertinents belonging or effeiring to the subjects; and (FIVE) the whole right, title and interest of the said trustees of Andrew Lubbock's 1991 Trust present and future, therein and thereto, were not included in the property conveyed by the Disposition by the Pursuers and others in favour of the First Defender registered in the Land Register of Scotland on 19th December 2002. Title number ROX4028."
A further point emerges, namely that the Trustees do not seek to assert ownership over the road next to the Lodge but rather seek a declarator that they have excluded (and thereby retained) a servitude right of access over it.
The proceedings
(3) The action called before me for Proof at Jedburgh Sheriff Court. Advantage was taken of time available one afternoon to conduct a very wet site visit (involving having to halt en route for flooded roadways to be drained sufficiently to permit a watery passage). The issues in the case require to be resolved through consideration of what the parties agreed to transfer and did transfer rather than from how the property lies in relation to other property. The only observation that might be made as to the layout of the property is that its main boundary is the hedge running alongside the road to the south-east. There is only a wire fence to separate the property from Harwood Estate to the north-west. Thus, to an observer on the ground the house might seem to be grouped with the Estate property.
Agreed circumstances
(4) Clocker Lodge, otherwise known as Harwood Lodge and The Clocker, in its surrounding garden ground of some 662.2 square metres, is situated at Harwood, near Bonchester Bridge, Hawick. Georgina Lauder had been the housekeeper of Katherine, Baroness Elliot of Harwood, (the aunt of Andrew Lubbock) for many years. Baroness Elliot of Harwood, who died on 3rd January 1994, made a direction in her Will that her executors (who are "the Trustees" in this action) acquire a house for Miss Lauder and allow her to occupy for life that house or any other house which they might acquire as a substitute therefor. By virtue of the Will this provision would be satisfied by the Trustees making available one of the cottages on the Harwood Estate. The Lodge, formerly part of the property owned by the Andrew Lubbock 1991 Trust, was acquired by the executors in 1996 in a Disposition recorded in the General Register of Sasines on 2nd October 1996 where the property is designed as Clocker Lodge, Harwood. It was up-graded with a second bedroom being added and the sitting room being extended. A Minute of Agreement was then entered into (which was registered in the Books of Council and Session on 14th February 1997) whereby the Trustees awarded Miss Lauder the liferent use of the Lodge, she having gained entry to it in July 1996.
(5) In 2002 Andrew Lubbock, the Andrew Lubbock 1991 Trust, the Elliot of Harwood Trust and Hamish Lubbock, the heritable proprietors of the Harwood Estate, decided to sell the Estate under exception of Harwood Mill and the Lodge. FPD Savilles, Estate Agents, received instructions to market and sell Harwood House and its Estate under exception of Harwood Mill and the Lodge. They prepared draft Sales Particulars and a computerised plan of the Estate for sale. The draft Sales Particulars contained a Summary of Accommodation with Lots 1 to 8 for sale as a whole or in lots. Fourteen properties were stated as being included and the Summary of Accommodation named them. Neither Harwood Mill nor the Lodge were mentioned in the draft Sales Particulars.
(6) In 2002 the Trustees gave instructions to their solicitors to sell the Estate under exception of Harwood Mill and the Lodge to Robin Feakins.
(7) By Missives dated 18th July 2002 and 29th and 30th August 2002 the Trustees and the other heritable proprietors agreed to sell and Mr Feakins agreed to purchase the parts of the Harwood Estate described in the Missives and shown on a Plan annexed to the Missives. Again, "Clocker Lodge" was mentioned neither in the Missives nor on the Plan.
(8) The offer dated 18th July 2002 contained the following clause:
"3. The subjects will be conveyed to the purchaser along with and the purchase will include the following-
(a) the whole houses buildings and erections on the subjects and all heritable fixtures and fittings and fixed equipment pertaining thereto including without prejudice to the foregoing generality all installations, sheds, dippers, gates, fences, tanks, pipes, silos and others, all plants and shrubs in the garden at the date hereof...
(d) the solum of any public roads running through or through or ex adverso the subjects so far as belonging to the seller..."
(9) By fax dated 15th August 2002 solicitors acting on behalf of the Trustees advised solicitors acting on behalf of the Mr Feakins that the Lodge was not to be included in the subjects to be sold. Paragraph 5 stated:
"Clocker Lodge, Harwood was conveyed by Andrew Lubbock's 1991 Trust Trustees to the Elliot of Harwood Trust by Disposition recorded 2nd October 1996. Clocker Lodge and Harwood Mill are not to be included in the sale of the Estate."
(10) The qualified acceptance dated 29th August 2002 accepted the offer subject inter alia to the following qualifications:
"1. (a) The subjects to be conveyed to your clients in terms of the missives to follow hereon ("the missives") will be the subjects shown outlined in red on the plan marked "Plan 1" annexed and signed as relative hereto under exception of the subjects disponed by (i) Statutory Conveyance by Andrew Lubbock in favour of The Borders Regional Council recorded GRS (Roxburgh) 17th October 1991, and (ii) Disposition by Andrew Lubbock in favour of The Secretary of State for Scotland recorded GRS (Roxburgh) 16th June 1998 ("the subjects"). The area shown hatched black on the plan marked "Plan 2" annexed and signed as relative hereto will be excluded from warrandice in the Disposition to be granted to the purchaser."
"5. In condition 3 of your offer (i) the words "insofar as belonging to the seller" are inserted after the word "hereof" at the end of paragraph (a)" and after the word "kinds" at the end of paragraph (g) but notwithstanding the foregoing the seller warrants that there are no mineral agreements or mineral tenancies affecting the subjects; (ii) paragraphs (c) and (f) are deleted; and (iii) the words from and including the word "but" in paragraph (e) to the end of said paragraph are deleted."
"18. (b) The missives (including the annexations thereto) shall as at the date of conclusion thereof represent and express the full and complete agreement between the seller and the purchaser relating to the sale of the subjects and shall supersede previous agreements between the seller and the purchaser (if any) relating thereto."
A letter accepting the qualifications and holding the contract as concluded was sent on 30th August 2002.
(11) Andrew Lubbock, the Andrew Lubbock 1991 Trust, the Elliot of Harwood Trust and Hamish Lubbock disponed to Robin Feakins in the Disposition registered in the Land Register of Scotland on 19th December 2002 the subjects described as:
"those parts and portions of the lands and estate of Harwood in the County of Roxburgh as also those parts of the lands at Shankendsiel in said County delineated and coloured red on the plan marked "Plan 1" annexed and signed as relative hereto"
but subject to certain exceptions, none of which related to the Lodge. Attached to the Disposition was Plan 1 which was a coloured A3 size version of the plan prepared by Savilles on a scale of 1:25,000. The only red on Plan 1 was the red boundary line. Once more, "Clocker Lodge" was mentioned neither in the Disposition nor on the Plan.
(12) In November 2009 Mr and Mrs. Feakins called at a mutually arranged time on Miss Lauder. Pursuant to this visit the Trustees were made aware of ownership of the Lodge being in issue and their solicitors took the matter up with Mr Feakins' solicitors. Since sale of the Estate maintenance and insurance of the Lodge have continued to be met by the Elliot of Harwood Trust. From the sale until 2003 and again since 2009 Mr Feakins has also insured it. Mr Feakins has taken no steps to disturb Miss Lauder's occupation of the Lodge.
(13) In the Land Certificate which has been issued, Title Number ROX4028, the Lodge and the road adjacent to it are plotted as being within the area transferred. That Title Plan is stated as being on a scale of 1/10,000 and a survey scale of 1/2,500.
The plans
(14) The plan which is attached to the principal Qualified Acceptance is a black and white A4 size photocopy of the plan prepared by Savilles dated 1st May 2002. The Pursuers' Productions contain a copy qualified acceptance, the witness copy of which has a coloured A3 copy of the Savilles 1st May 2002 plan and the Court copy of which has a coloured A4 copy. The Savilles plan allocates Lots 1 to 8, each differently coloured or shaded in the coloured versions, which accord with the eight lots in the draft Sales Particulars. Miss Clifford was confident that the plan which she sent out along with the Qualified Acceptance in 2002 would have been an A3 colour version with an original docket on it. This accords with Mr Armstrong's recollection of what he received. By the stage of Submissions it was accepted by parties that the original plan annexed to the principal Qualified Acceptance was likely to have been similar to the A3 plan annexed to the copy qualified acceptance lodged with the pursuers' Productions. However, by then some of the witnesses had been asked to comment on the A4 plan actually attached to the Qualified Acceptance. The plan attached to the Disposition is a coloured A3 size version of the 1st May 2002 plan prepared by Savilles.
Witnesses
(15) Andrew (John Nicholas Andrew) Lubbock explained how Harwood Estate had been owned by several entities. Mr Lubbock had lived on the estate for 36 years and had always known the house as Clocker Lodge, clocker being Scots for a brooding hen. He was a very impressive witness giving precise responses which I accepted as wholly reliable in terms of the facts of what had happened. The extent to which he could speak to the interpretation of the documentation and plans was, however, restricted. Shown the black and white A4 size photocopy of the plan attached to the Qualified Acceptance, Mr Lubbock was of the view that one could not determine from it whether the Lodge was on, inside or outside the boundary line. Looking at the A3 Plan attached to the Disposition, Mr Lubbock was of the view that it was obscure whether the Lodge was included in the property transferred or not. Mr Lubbock spoke to there being a kink in the line in the Plan attached to the Disposition which located where the Lodge stands and thought that the kink had been inserted in order to exclude the Lodge.
(16) Guy Galbraith, a Director of Savilles at the time that Harwood Estate was marketed, explained that they had been instructed to offer the Estate for sale privately in the first instance and had contacted a number of individuals. Mr Feakins had submitted an offer which had been accepted by the proprietors at a very early stage and before any public marketing. He explained that the plan prepared by Savilles in the Draft Sales Particulars was merely a computerised draft plan for marketing with the data coming from the Ordnance Survey. In the normal course this would have been formalised when a glossy brochure would be printed that would contain a formal plan. He advised that the Draft Sales Particulars and plan which his firm had drawn up did not contain any express alert to the exclusion of Harwood Mill and Clocker Lodge since from a marketing point of view the original owner remaining and retaining a number of the properties might deter potential purchasers. He said that had the retained properties been within the body of the Estate he would have inserted an express alert but not when the property to be excluded was on the edge. He observed that the plan which had been prepared was never intended by Savilles for use either in missives or in a disposition. Looking at the black and white A4 size photocopy of the plan attached to the Qualified Acceptance, Mr Galbraith thought that it was harder to see "what was in and what was out". Looking at the A3 plan attached to the Disposition, Mr Galbraith spoke of there being a kink in the line where the Lodge stands and was clearly of the view that the Lodge was under the red line at the indentation.
(17) Sheena Clifford was the solicitor at Turcan Connell who dealt with the conveyancing transaction. She said that in 2002 she had received instructions from Andrew Lubbock, the Andrew Lubbock 1991 Trust, the Elliot of Harwood Trust and Hamish Lubbock as to the sale of Harwood Estate. Clocker Lodge was not to be included in the sale. She advised that there had been a number of different versions of the Draft Sales Particulars. Miss Clifford confirmed that by fax dated 15th August 2002 she advised the solicitors acting on behalf of the Mr Feakins that the Lodge and Harwood Mill were not to be included in the sale. Looking at the A4 plan currently annexed to the Qualified Acceptance, Miss Clifford stated that it was not clear on the scale of that plan whether or not the Lodge was excluded but thought that the plan had been A3 in size. Miss Clifford conceded that if one looked at the Missives and the A3 Plan one might conclude that the Lodge had been included. She was referred to the word "Lodge" which is at what she described as the corner of the Plan and which is within the red line. Looking at the A3 plan annexed to the Disposition, Miss Clifford observed that the red line took an indentation or dip to the left at the location of the Lodge and confirmed that the boundary usually included the red line. While maintaining that it was not clear what was excluded on the Plan, Miss Clifford conceded that the Plan might be interpreted as excluding only part of the road so that it might be concluded that the Lodge had been included. Miss Clifford confirmed that Miss Lauder's liferent use of the Lodge had never been discussed with Mr Feakins's solicitors since the matter was considered to have been of no concern to him.
(18) Georgina Lauder said that she had occupied the Lodge, known locally as "The Clocker", since July 1996 and that she had put up the "Harwood Lodge" sign. She explained that she pays for bills such as electricity and council tax, with the Elliot of Harwood Trust paying for external repairs and maintenance to the house. Examples were supplied of bills which the Trust had paid for repairs to the roof, replacement of the hot water cylinder and the like. Miss Lauder said that in November 2009 Mr and Mrs. Feakins had come to the house, as pre-arranged by Mrs. Feakins. She stated that they had shown Miss Lauder a small map, which had on it her house and Harwood Mill, and that Mr Feakins had said something regarding a grey area. She said that the house was on the border line on the map but that Mr Feakins was clear in saying that it was his house. Miss Lauder said that she had been asked to let someone look around the house for insurance purposes but had refused consent on the advice of her solicitors. Otherwise, she confirmed that she had been left in peace by Mr Feakins.
(19) Robin Feakins described how he came to buy Harwood Estate in 2002, saying that he had viewed Harwood House and had driven around the Estate. He said that he had been given short draft particulars extending to two to three pages by Charles Dudgen of Savilles, not the fuller Draft Sales Particulars produced by the Trustees containing a Summary of Accommodation which he said that he had not seen until this case. He said that he had received a small black and white plan which had not included the road to Harwood House and that he was very insistent on purchasing the solum of that road and of any roads either going through or adjacent to the property. He had agreed a price of £2.7 million for the purchase of the Estate, stressing that he was buying the entire estate as far as owned by the sellers with the exception of Harwood Mill and was not buying according to any particulars of sale. He did not believe that it had ever been brought to his attention that Clocker Lodge was to be excluded from the sale, including by his solicitors, saying that he did not remember hearing of the name "Clocker Lodge" until 2009, having known the house as "Harwood Lodge". He said that he believed that the house was within the subjects that he was buying but that it was occupied by the former housekeeper to Baroness Elliot, having been informed by either Mr or Mrs. Lubbock that she was there as a liferenter for services supplied to Baroness Elliot. Mr Feakins said that he did not think that his solicitor had taken up with him the faxed letter from Turcan Connell dated 15th August 2002. When he acquired the Estate he said that he had taken over the same Estate insurance policy which had extended to the Lodge. Mr Feakins said that in 2003 he took advice and was told that the liferenter was responsible for the house and that he had no responsibilities towards her. After taking this advice he said that he removed the Lodge from the insurance cover, preferring to carry the risk himself, as he had done with property in the past and as he still does with a house in Kidderminster, the area in which they had lived before they moved to Harwood.
(20) Looking at the A3 Plan attached to the Qualified Acceptance, Mr Feakins observed that some of outward part of the road at the top right-hand corner appeared to be outwith the red line. Looking at the A3 Plan attached to the Disposition, he observed that there appeared to be a deviation to the left hand side of the red line at the top right hand corner of the Plan. In that Plan at the Lodge the outward part of road appeared not to be within the red line. Mr Feakins explained that the road beside the Lodge, which was the only access into Harwood, was in constant use for that purpose. Mr Feakins said that he lived in Harwood House and that he and his family farmed the Estate, last season lambing 3,200 ewes. He said that he and his family maintained the hedgerows on either side of the Estate roads, in which he included this road, although the road itself was maintained by Borders Regional Council right up to Harwood House and Miss Lauder maintained her own hedge.
(21) Mr Feakins explained that the issue first arose in 2009 after a delivery lorry had caused damage to Harwood House resulting in the insurers sending an assessor and thereafter wishing to carry out a full inventory in order to assess the risk. It was at that point, he said, that he had made an appointment to see Miss Lauder since the insurance company wanted to know the exact arrangements under which she was living in the Lodge. He said that it was during this visit that he learnt of the Minute of Agreement which imposed certain responsibilities. He denied having described ownership of the Lodge as a "grey area", saying that it was a gentleman who lived with Miss Lauder who had said that it could be a grey area since it was near to the boundary. He said that the insurers had wanted to view inside the property but Miss Lauder refused permission on the advice of her solicitor and so the assessor had walked around the edge of the property. Mr Feakins said that Miss Lauder had said that she would provide him with a copy of the Minute of Agreement but had subsequently declined to do so on the advice of her solicitors and that, on the basis of his recollection of what it had contained and since he might have had some responsibilities towards Miss Lauder, he had again insured the Lodge. He said that he had not gone back to Miss Lauder since his visit because he had received a letter from Messrs Turcan Connell telling him not to have dealings with the house and then the matter had become the subject of these proceedings.
(22) Describing himself as a "self-made man" who tried to make sure that what he was getting was what he was supposed to be getting, a degree of scepticism might surface at Mr Feakins acquiring a house which the sellers, estate agents and solicitors knew that he was not supposed to be acquiring. Moreover, it was unclear as to why the insurers should have wished their assessor to see the Lodge when by that time the Lodge was not covered by the Estate policy. Further, it was never explained how in 2003 Mr Feakins could have enquired of his solicitor as to his responsibilities to Miss Lauder if she had a liferent of the Lodge without his solicitor remarking that the Lodge was not supposed to have been conveyed to him. However, Miss Lauder was indeed approached to allow access to the assessor and one explanation in relation to the liferent would be that the Lodge was known to the Trustees as Clocker Lodge, which was how it was referred in the Titles and in correspondence, but was known to Mr Feakins as Harwood Lodge, which was the name on its gate. It may, therefore, not have been apparent at the time that the Harwood Lodge occupied by Miss Lauder was the same Clocker Lodge referred to in the fax. Overall there was little cause to refute the veracity of any of the witnesses, since their accounts could each have been consistent with the way in which the Lodge had come to be conveyed.
(23) John Armstrong, a partner in Messrs. Smail & Ewart, drafted the Offer for Harwood Estate dated 18th July 2002, describing the Estate with little detail other than saying that it extended to 1,485 hectares, which information he had gleaned from Mr Feakins. He said that he had included Clause 3(d) since Mr Feakins had specifically wanted to acquire the solum of the roads. He said that he had been provided by the selling agents with a plan of the subjects being sold and his recollection of the plan attached to the Qualified Acceptance was that it was a coloured A3 plan, not the one currently attached to the principal Qualified Acceptance. He said that he had sent Mr Feakins the plan and had been authorised to conclude the bargain. Mr Armstrong said that he was aware that Clocker Lodge and Harwood Mill were not part of the subjects being sold but that he had not known where Clocker Lodge was and that it was not identified on the Plan. His expectation was that both Clocker Lodge and Harwood Mill were excluded from the Plan and so that had not needed to be expressed. He pointed out that this easily could have been done, there being express exceptions in the Missives and the Disposition. He said that he had not taken instructions from Mr Feakins on the faxed letter from Turcan Connell dated 15th August 2002, seeing no need to do so since the subjects to be disponed were those on the Plan and he did not concern himself with what his client was not buying if his client was content with the Plan. He accepted that he had examined the break-off writs, including the Disposition of Clocker Lodge, but maintained that he did not know where this lay on the Estate. Looking at the Plan attached to the Disposition, Mr Armstrong observed that the red boundary line went over the footprint of the Lodge and stated that as the property was defined in the Disposition as "delineated and coloured red on the plan" the red line was undoubtedly within the subjects, the boundary being the outside of the line. He said that while there was a very small outward portion of the road outside the red line that this had been unintended, since the solum of the road had been purchased. He saw an indentation on the inside of the red line but not on the outside of it. Mr Armstrong confirmed that Mr Feakins had telephoned him asking if he would be required to maintain the Lodge if it had a liferenter and that he had told him that he had no obligations. Mr Armstrong said that the Form 1 sent to the Keeper which had been completed by him and revised by Messrs Turcan Connell had likely not included the liferent of the Lodge since he had not known about it at that time.
Submissions
(24) Seeking rectification of what he termed an inaccuracy in the Land Register, it being clear that the Trustees had had no intention of selling the Lodge, the Solicitor for the Pursuers submitted that it was impossible to determine the extent of the subjects disponed from the Disposition, the scale of the Plan being such that there was no way of determining whether the Lodge was included or excluded from the sale subjects. On the basis that no one was able to say from the Disposition whether the Lodge was included or not, it was argued that regard must be had to the intention of parties to determine the effect of the Disposition, reliance being placed upon the example of the transfer of the "estate of Dallas" in Houldsworth v Gordon Cumming 1910 S.C. (H.L.) 49. The Solicitor for the Pursuers submitted that the finality clause in the Missives did not preclude looking beyond them since the Pursuers were not seeking to imply terms into the agreement but to interpret the existing terms, under reference to Macdonald Estates plc v Regenesis (2005) Dunfermline Ltd 2007 SLT 791, 825 para. 178. The Solicitor for the Pursuers also disputed that Mr Feakins was a proprietor in possession, conceding that if he were one then none of the derogations in section 9(3)(a)(i), (iii) or (iv) of the Land Registration (Scotland) Act 1979 applied, thus precluding rectification. It was submitted that Mr Feakins was not in civil possession of the Lodge, with Miss Lauder having no right to be in the property at present, Miss Lauder's right being a personal one vis-à-vis the Trustees of the Estate of Baroness Elliot. Arguing that civil possession only arose where one person was detaining the property on behalf of another person, such as a liferenter and fiar, it was submitted that that was not the case here.
(25) Counsel for Mr Feakins began by submitting that a court order for rectification of the Land Register was discretionary and pointed out that the Pursuers were not seeking rectification of the Disposition nor of the Missives. It was disputed that there had been any error in registration, submitting that the Lodge was included in the delineated subjects in the Plan attached to the Disposition, which was an end of the matter. Were the intention of parties to be looked at, he observed that it had been Mr Feakins' intention to buy the Estate, including the Lodge. The intention of parties was to be derived from the Missives and defined by reference to the Plan. Reliance was placed upon the finality clause in the Missives as precluding reliance upon extraneous statements. Furthermore, it was disputed that rectification was available since it was submitted that Mr Feakins was a proprietor in possession of the Lodge. It was argued that he was in natural possession of the Estate to the full extent of the registered title to the extent that it was not carried by the Minute of Agreement creating the liferent, that he was in civil possession of the Lodge as Miss Lauder was there by tolerance of Mr Feakins and that he was in natural possession of the road adjacent to it. It was asserted that it was open to Miss Lauder to register the Minute of Agreement in the General Register of Sasines or the Land Registry and to apply for rectification of the Land Register to have the overriding interest of the liferent interest noted in order to create a real right, whereby Mr Feakins would be the fiar and he would then definitely have civil possession. As Miss Lauder occupied the Lodge by tolerance of Mr Feakins, it was maintained that he was in civil possession of it.
Decision
Inaccuracy in the Land Register
(26) As has been outlined, it was not disputed that the Trustees gave instructions to Savilles and to their solicitors to sell Harwood Estate under exception of Harwood Mill and Clocker Lodge. The Trustees, Savilles and the Trustees' solicitors were, therefore, in no doubt that Harwood Estate was to be sold under exception of Harwood Mill and Clocker Lodge. The seeds for potential confusion were first sown when the draft Sales Particulars were drawn up in a manner which neither specifically included nor excluded Harwood Mill and Clocker Lodge. Savilles took the view that from a marketing point of view that might have deterred potential purchasers and was unnecessary since they were not within the body of the Estate. However, while Harwood Mill was clearly outwith the boundary marked on the plan, the Lodge was positioned at about the boundary. Thereafter, the fax from the Trustees' solicitors of 15th August 2002 narrated that Clocker Lodge and Harwood Mill were not to be included in the subjects to be sold, so that Mr Feakin's solicitors were also in no doubt that Harwood Estate was to be sold under exception of Harwood Mill and Clocker Lodge. However, the opportunity was not taken to specify the exclusion of Harwood Mill and Clocker Lodge in either the Missives or the Disposition. Reliance was simply placed upon the Plans which were annexed thereto but which were not designed for that purpose. As the Land Certificate for the subjects does include the Lodge and the road adjacent to it, the first question to be addressed is whether there is an inaccuracy in the Land Register.
(27) Section 9 of the Land Registration (Scotland) Act 1979 provides that:
"9.- Rectification of the register.
(1) Subject to subsection (3) below, the Keeper may, whether on being so requested or not, and shall, on being so ordered by the court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein.
(2) Subject to subsection (3)(b) below, the powers of the court and of the Lands Tribunal for Scotland to deal with questions of heritable right or title shall include power to make orders for the purposes of subsection (1) above.
(3) Subject to subsection (3B) below, if rectification under subsection (1) above would prejudice a proprietor in possession-
(a) the Keeper may exercise his power to rectify only where-
(i) the purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an overriding interest;
(ii) all persons whose interests in land are likely to be affected by the rectification have been informed by the Keeper of his intention to rectify and have consented in writing;
(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; or
(iv) the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act;
(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where sub-paragraph (i), (iii) or (iv) of paragraph (a) above applies or the rectification is consequential on the making of an order under section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985."
(28) In considering whether there is an inaccuracy in the Land Register regard ought to be had in the first instance to whether the Land Register is in accordance with the Disposition. The property in the Disposition is described by reference to a Plan, which is on a scale of 1:25,000. Evidence as to whether the plan attached to the Disposition included the Lodge or not came from a number of witnesses involved in the transaction - qua seller, buyer or professional agent. While none professed any expertise in the reading or examining of maps or plans, parties proceeded upon the basis that the evidence adduced was sufficient to enable a conclusion to be reached. There was perceived to be a miniscule kink or indentation in the red line in the Plan attached to the Disposition at about the point where the Lodge lies. While the inside edge of the line might be marginally indented, any indentation of the outside edge was less clear, with the result that it is difficult to determine whether a line of the same width is indented or the line is marginally widened at that point. Most witnesses saw this kink as involving the road. Some of the outward section of the road at the top right-hand corner of the Plans annexed to both the Qualified Acceptance and the Disposition was noted to be outwith the red line. However, if the red line extended to part of the roadway next to the Lodge it was already beyond the Lodge by that point. Moreover, ownership of the road is not in issue in these proceedings. I accept the clear evidence of Guy Galbraith and John Armstrong and, by implication, of Mr Feakins (since he observed the red line as extending beyond to the road) that the Lodge lies under the red line on the Plan. There was no convincing evidence which could be relied upon that the Lodge was outside the red line, Mr Lubbock and Miss Clifford seeing the matter as being obscure or unclear. The Disposition conveys those parts of the Estate delineated and coloured red on the plan, which therefore includes the Lodge. It may also be observed that in the Plan attached to the Disposition the word "Lodge", referring to Clocker/Harwood Lodge, is inside the red line. The onus is on the Pursuers to establish on a balance of probabilities that there was an inaccuracy in the Land Register and they have been unable to establish by reference to the property conveyed in the Disposition that the Land Register is inaccurate in its inclusion of the Lodge. Whatever might have been intended, the Disposition has not excluded the Lodge. In the absence of express provision in the Disposition, in my view there is no basis for declaring the subjects specified in parts Two to Five of Crave 1 as being excluded from the property conveyed. Nor is there any corresponding inaccuracy in the Land Register warranting rectification.
(29) In the event that the Disposition had been ambiguous as to whether the Lodge was included or not the Pursuers proposed to look beyond the Disposition in order to ascertain what the parties had intended to convey. In that regard, the primary documentation to consider would have been the Missives. Although not referred to in the course of the Proof, it may be noted that the Disposition contains the following clause:
"The Missives of Sale which we have concluded with the said Robin Feakins and which are constituted by formal letters dated Eighteenth July, Two Thousand and Two and subsequent dates shall subject to the provisions regarding cessation contained therein form a continuing and enforceable contract notwithstanding the delivery of these presents except insofar as fully implemented thereby".
In the Missives the property is described by reference to a plan attached to the Qualified Acceptance and while that plan has not been produced in these proceedings parties proposed that the copy plan annexed to the Pursuers' copy of the Qualified Acceptance be taken as being the same as the one that would have been annexed to the Qualified Acceptance. The same reasoning applies to this Plan as to the one annexed to the Disposition, they being essentially the same plan. Therefore, had it been necessary to look to the Missives the Pursuers would have been unable to establish that the property there described differed from that conveyed in the Disposition and have failed to establish that the Land Register was inaccurate in its inclusion of the Lodge by reference to anything contained in the Missives.
(30) In the event that both the Disposition and the Missives had been ambiguous as to whether the Lodge was included in the sale or not the Pursuers proposed to look beyond them in order to ascertain what the parties had intended to convey. However, the Missives contain a finality clause as set out in para. (10) above rendering them unable to do so. In construing an entire agreement provision in the context of a warranty in a Supplementary Opinion in BSA International S.A v Irvine [2010] CSOH 78 Lord Glennie observed on the wording of that particular clause:
"The intent of a clause such as this, as the wording makes clear, is to preclude reliance upon extraneous statements, representations and promises. As Lightman J put it in Inntrepreneur Pub Co. v. East Crown Ltd. [2000] 2 Lloyd's Rep. 611 at 614,
"The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain) on which to found a claim ... to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search."
This decision was cited with approval by Lord Reed in Macdonald Estates Plc v. Regenesis (2005) Dunfermline Ltd (unreported (sic) [2007] CSOH 123) at para. [130]-[131]. The clause precludes reliance upon statements, representations, etc, "other than as expressly set out in this agreement as a Warranty".
Under reference to that particular clause he continued:
"If the representation is not set out in the agreement as a Warranty, it may not be relied upon, except, of course, in the case of fraud. But if it is set out in the agreement as a Warranty it may be relied upon. "(at para. [9]).
Had it been necessary to consider whether to look beyond the Missives, in my view the express provision that they constituted the full and complete agreement between the seller and the purchaser relating to the sale of the subjects and superseded previous agreements between them would have precluded consideration of prior or collateral statements in this context.
(31) Even had it been possible to look beyond both the Disposition and the Missives, there was no common understanding between the parties as to the Lodge. In construing what the granters of the Disposition had intended to convey it is certainly clear that the Trustees' intention had been that the Lodge would not be included. However, the parties were not at one on this since Mr Feakins understood that he was buying Harwood Estate as shown on the annexed plans which, if the Lodge was on the plans, included the Lodge. Thus, even had the Trustees been able to found upon the intention of parties, they would be unable to rely upon this to demonstrate that there had been an inaccuracy in the Register.
Proprietor in possession
(32) In the event that the Pursuers had established that there had been an inaccuracy in the Land Register the Court would be precluded from ordering rectification if Mr Feakins was a proprietor in possession who would be prejudiced thereby. That could only be ordered in certain defined circumstances, none of which was applicable here. On the view reached that there was no inaccuracy in the Land Register this is not a live issue but it is one which requires to be canvassed lest that view be ill-founded. Embarking upon such an endeavour has to be recognised as being fraught with difficulties, having regard to the way in which the Act is drafted, the academic debate which has waged for decades, the scarcity of judicial authority on the matter and the particular circumstances here.
(33) The position of a proprietor in possession is not defined in the Act and has been the subject of discourse between Kenneth Reid and the Keeper in New Titles for Old, Journal of the Law Society of Scotland 1984 p 171. While Lord Hamilton had cause to consider it in the Outer House in Kaur v Singh 1998 S.C. 233 it was unnecessary there to decide upon the position of a proprietor enjoying possession civilly:
"The holder of a standard security may enter into possession of the security subjects when the debtor is in default. If he does so, then I see no reason why he should not be recognised when in such possession, at least if it is natural possession, as 'a proprietor in possession'. Likewise, a lessee under a long lease, a proprietor under udal tenure, a kindly tenant and a liferenter under a real liferent, if in each case in natural possession of the subjects, would be 'a proprietor in possession'. So also, of course, would a person in right to the dominium utile if he had such possession at the material time. That list is not intended to be exhaustive. I acknowledge that 'in possession' in that sense means in possession of the subjects to which the relative interest in land relates rather than in possession of that interest itself; but this is not in my view, a strained reading. It is unnecessary for present purposes to decide whether a proprietor enjoying possession civilly, that is, enjoying it through the physical possession of another could be a 'proprietor in possession' for the purposes of sec 9(3). I reserve my opinion on that matter. However, a proprietor whose possession is at best by reason of a legal fiction does not, in my view, fall within the legislative intention." (at p 242).
In the Inner House the Lord President (Rodger) did not attempt to map out the boundaries of possession for these purposes but posited the example of a daughter who occupied the flat in question (cf 1999 S.C 180, 191H; 1999 SLT 412, 419F).
(34) When the Lands Tribunal for Scotland had to consider whether a party was a proprietor in possession in Tesco Stores Ltd v Keeper of the Registers of Scotland 2001 SLT (Lands Tr) 23 the position of a hypothetical lodge house was specifically raised in submissions:
"Counsel for Safeway emphasised the importance of identifying the interest in land. That was what was to be corrected. The relevant interest in land was the whole interest shown by the title sheet. It was possession of that interest as a whole which had to be established. An attempt was made to test this submission by reference to the hypothetical case of an estate owner possessing a large country estate on a registered title which inaccurately failed to show that a lodge house, apparently an integral part of the estate, had been split off on a previous sale. Circumstances could easily be envisaged in which the proprietor of the estate proceeded to make plans for the estate on the assumption that he had title to the lodge house. Counsel accepted that actings which might normally be of sufficient quality to demonstrate possession of the estate as a whole would not necessarily suffice to establish possession of the lodge. It would be a question of circumstances. Proof of adverse possession of the lodge house would show that the estate proprietor did not in fact have possession of it. The register could therefore be rectified to show the true interests. Counsel put his submission on the basis that "the quality of possession should be tested as a matter of evidence by reference to the registered subjects as a whole"." (at 30D - F).
In concluding that proof of possession was essentially a matter of circumstances (at 35C et seq) the Tribunal stated:
"Evidence of physical actings demonstrative of possession may be hard to find. It is tempting to say that to force a registered proprietor to positive proof of possession of every part of the subjects covered by his title weakens the status of the Register. We have come to the conclusion, however, that this is essentially a matter of circumstances, If the nature of subjects covered by the registered title is such as to justify an inference of possession of the whole without direct evidence of physical possession of every single part, necessary possession may be established. If the nature of the physical subjects covered by the title does not invite that inference other evidence may be required.
In an attempt to illustrate the practical implications of the different approaches in a context remote from the river, there was initially some discussion of what would happen if the register accidentally failed to show the boundary between two adjacent houses. However, a more refined example was developed, instancing a proprietor of a large estate where, for some reason, the break-off title to a former lodge had been missed. It was not difficult to envisage circumstances in which the new laird might take possession of the estate as a whole without in fact being aware that his purchase had not included the lodge. He might, indeed, have made plans for development which included using part of the lodge garden to enlarge his gateway. Counsel for Safeway conceded that evidence of direct possession by the "true owner" of the lodge would prevail and that possession of the estate as a whole would not prevent rectification. Counsel accepted that it would simply be a question of evidence bearing on possession of the subjects in dispute." (35D - F)
However, the hypothetical example given does not fully match the circumstances in the present case. Natural or direct possession of the Lodge was exercised by Miss Lauder but neither she nor the Trustees held a registered title. In refusing the appeal the Inner House held that in considering whether the appellants were proprietors in possession the Tribunal had correctly considered the whole circumstances and that the proprietor in possession was one who on the faith of the Register had actual use or enjoyment of the property to more than a minimal extent as one's own: sub nom. Safeway Stores Ltd v Tesco Stores Ltd 2004 SC 29. Lord Hamilton held that: "The existence of physical features on the ground, including natural physical boundaries, and the activities of the 'proprietor' within or beyond such features may be material to what inference may properly be drawn as to the extent of his possession." (p. 59, para [77]) Lord Osborne indicated that possession of part of the property was not equivalent to possession of the whole in all circumstances and, in particular, where there was a competition of would-be possessors (p 54, para 62).
(35) The extent to which it might be inferred that Mr Feakins had possession of the Lodge, while not ignoring the subjects as a whole, is marginal in nature. Both parties proceeded upon the basis that any possession enjoyed by Mr Feakins of the Lodge would by way of civil possession, Miss Lauder having direct possession of it. However, the subjects as a whole should not be ignored. It was Harwood Estate that Mr Feakins acquired and he is in actual possession of that Estate, living there with his family and having a sheep farm there. This casts a different light on considering the position of the Lodge from had it been viewed in isolation.
(36) In a further twist Mr Feakins has, in effect, allowed Miss Lauder to occupy the Lodge although she has no legal right to reside there. Miss Lauder's liferent interest never having been registered, she does not currently enjoy such an interest in the Lodge, though she retains her personal right to the provision of a house as against the Trustees and though she could acquire a liferent interest in the Lodge were the Minute of Agreement to be registered and the Land Register to be rectified. Miss Lauder's interest has been misconstrued generally - she and the Trustees thought that she had a liferent of the Lodge with the Trustees as fiars and Mr Feakins thought that she had a liferent with himself as fiar. Seeing himself as the owner of the Lodge, Mr Feakins respected Miss Lauder's possession of it and left her in peace, having been told by his solicitors that he had no responsibilities as regards the Lodge during Miss Lauder's liferent of it. While the Trustees were paying for repairs to and maintenance of the Lodge, Mr Feakins had no knowledge of that. There is a difficulty, therefore, in construing Miss Lauder's detention of the property as being done on behalf of Mr Feakins so as to constitute his civil possession of it through possession by her. Nor is she there as a squatter since she is there with his concurrence.
(37) While this is a narrowly balanced issue I would tend to the view that Mr Feakins might be construed as a proprietor in possession of the Estate including of the Lodge. Facts and circumstances which have a bearing on his possession of the Lodge include that:
- Mr Feakins acquired Harwood Estate, lived there in Harwood House, farmed the Estate and was in actual possession of the Estate;
- other than Harwood House there were thirteen houses or cottages on the Estate plus the Lodge,
- Mr Feakins continued the previous Estate insurance cover, which included cover for the Lodge;
- as demonstrated by the advice which he took from his solicitor in about 2003 as to his responsibilities to Miss Lauder if she had a liferent of the Lodge, Mr Feakins regarded himself as owning it and understood that Miss Lauder enjoyed a liferent of it;
- on the basis of the advice that he had no responsibilities to a liferenter at common law, Mr Feakins cancelled the insurance over the Lodge but otherwise respected Miss Lauder's position in allowing her to occupy it undisturbed;
- after sight of the Minute of Agreement in 2009 Mr Feakins re-insured the Lodge in case there was a responsibility on him to do so;
- the most prominent natural boundary of the Lodge is the hedge bounding the road and the natural boundary of the Estate is the road;
- Miss Lauder enjoyed natural possession of the Lodge but it was never portrayed that she owned it outright;
- the Trustees have no title to the Lodge and Miss Lauder could not have occupied it on their behalf;
- in these proceedings it is not disputed that Mr Feakins has title to and actual possession of the road bordering the Lodge; and
- the Lodge lies between the road bounding it and the remainder of the Estate and Mr Feakins is in natural possession of both the road and the Estate which surround the Lodge.
(38) Certainly, Mr Feakins could have done more in order to demonstrate possession, such as in formalising Miss Lauder's occupation of the Lodge in writing. However, he left Miss Lauder undisturbed since he understood that she had a liferent to the Lodge and that he had no responsibilities in relation to the Lodge during Miss Lauder's occupancy of it. There was also a sense that parties wished to respect the arrangements instituted by the late Baroness Elliot, which may have caused Mr Feakins to hesitate before delving into what he saw as being the detail of her tenure. Where Mr Feakins owned the Estate and the road beyond the Lodge, had title to the Lodge, thought that he owned the Lodge and chose to allow Miss Lauder to remain there, everyone understanding that she had a liferent right to remain there, having explored the matter with his solicitor and having taken certain steps in relation to insurance, it is understandable that he might not have deemed that anything more needed to be done during Miss Lauder's tenure of the Lodge. Accordingly, had the Pursuers established an inaccuracy in the Register, in my view Mr Feakins would be regarded as a proprietor in possession who would have been prejudiced by the rectification of the inaccuracy and this would equally have precluded ordering the Keeper to rectify it.
Parties not called
(39) Parties did not raise the question as to whether it would have been open to construe the Missives and the Disposition and to order rectification of the Land Register when some of the parties to the Missives and the Disposition, namely Andrew Lubbock as an individual, the Trustees of Andrew Lubbock's 1991 Trust and Hamish Lubbock were not parties to the action and accordingly I reserve any opinion on this.
Second Defender
(40) I was not asked to make any order in respect of the Keeper of the Registers of Scotland.
Expenses
(41) It was agreed that expenses should follow success and the Defenders' motion for certification of the cause as suitable for the instruction of Junior Counsel was not opposed.
Summary
(42) In summary, there is no inaccuracy to be rectified in the Land Register for Scotland's inclusion of the Lodge amongst the property which was conveyed to Mr Feakins with Harwood Estate, despite the Trustees not intending to convey the Lodge to him. The property transferred in the Disposition did include the Lodge. In any event, there would be further obstacles to the rectification of the Register. Had the Disposition been ambiguous and had regard been had to the Missives, the Lodge is amongst the property there agreed to be transferred. In the absence of ambiguity in the Disposition and in the Missives, and since the Missives were agreed to be final, it would not be open to have regard to the prior intention of the parties. Even had that to be considered, parties' intentions had not been as one, since the purchaser did intend that the Lodge be conveyed. Finally, even had there been an inaccuracy in the Register, it would not have been open to order rectification of the Register since the purchaser was a proprietor in possession who would have been prejudiced thereby. For all of these reasons, while the Trustees did not intend to convey the Lodge and did not appreciate until some years later that Mr Feakins was the registered proprietor of it, having conveyed the Lodge to him there is no corresponding inaccuracy in the Land Register amenable to rectification.
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