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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Gilbert O. Gardner, Esq. v. John Scott and others [1843] UKHL 2_Bell_129 (3 March 1843)
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Cite as: [1843] UKHL 2_Bell_129
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SCOTTISH_HoL_JURY_COURT
Page: 129↓
(1843) 2 Bell 129
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1843.
No. 10
v.
[
Subject_Superior and Vassal. —
If, under a disposition with an alternative manner of holding, the disponee take a base infeftment,—a subsequent conveyance of the mid-superiority so created, and a confirmation thereof by the superior, will operate a mid-impediment to the vassal obtaining a charter from the superior so as to make his holding public.
Subject_Warrandice. — Prescription. —
If lands be conveyed in warrandice of a disposition of other lands with a double manner of holding, under which the disponee takes a base infeftment,—should the mid-superior convey the mid-superiority, and the disponee of the mid-superiority obtain a charter from the superior, this will operate as an eviction of warrandice, upon which prescription will run against the original disponee of the dominium title.
Subject_Titles — Roundary. —
A description of lands held to be demonstrative, not taxative.
On 28th February, 1737, James Wylie disponed to Gavin Lawson, in liferent, and James Lawson, his son, in fee, “All and haill mine, the said James Wylie's, fourth part and portion of the lands of Shawtonhill, called Lochquarter, presently possessed by Robert Semple, with houses, biggings, yards, and haill pertinents, lying in the parish,” &c. The Lawsons were infeft upon this disposition, and their infeftment was recorded.
On 9th November, 1758, James Lawson disponed to John Hamilton, all and haill his “fourth part and portion of the lands of Shawtonhill, called Lochquarter, as the same are now possessed by James Thomson, with houses,” &c. Hamilton was infeft
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On 6th October, 1768, John Hamilton disponed to his son John, the “fourth part and portion of the lands of Shawtonhill, called Lochquarter, with houses,” &c. according to the statement of the appellant, “as the same was some time possessed by James Thomson, and thereafter by James Russell;” but according to the statement of the respondents, “as the same was lately possessed by James Thomson, and all in the same way and manner as the said John Hamilton had right thereto by disposition in his favour by James Lawson.
On 12th January, 1773, John Hamilton the younger obtained a charter of confirmation of these titles from Dame Helen Murray, the superior of the lands, declaring, that the lands were to be holden of the granter in feu-farm.
After an intermediate conveyance by John Hamilton the younger, to his brother William, and a reconveyance back to him by William, John, on 22d March, 1827, disponed to Smith, as trustee for his creditors, “all and haill the said fourth part and portion of the lands of Shawtonhill, called Lochquarter.” On this conveyance, Smith was infeft, and his infeftment was recorded.
On 4th December, 1828, Smith disponed the lands to the appellant, who was infeft on 6th January, 1829, and his infeftment was recorded.
On the 14th October, 1836, the appellant obtained a charter from the Duke of Hamilton, who had acquired the superiority, of “all and whole the fourth part and portion of the lands of Shawtonhill, called Lochquarter, with the houses, &c. and haill pertinents thereof, as possessed by Robert Semple, and thereafter by James Thomson and James Russell, tenants therein, and which were acquired by the deceased John Hamilton from James Lawson, conform to disposition granted
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This was the title of the appellant. That of the respondents was as follows:—
On 21st May, 1755, James Lawson disponed to John Scott, “all and haill these my sixteen acres of arable land, or thereby, with mish and meadow belonging thereto, being part and portion of my lands of Shawtonhill, called Lochquarter, as the same is presently marched and meithed, occupied and possessed, by the said John Scott.” And in real warrandice of this conveyance, Lawson disponed to Scott, “all and whole my haill fourth part and portion of the lands of Shawtonhill, called Lochquarter, some time possessed by Robert Semple.” The disposition contained an obligation to infeft, a me vel de me, “the one holding being without prejudice of the other,” procuratory and precept, and an obligation upon the disponee, to relieve the disponer of L.3 Scots, “as a proportional part effeiring to the said lands, of the feu-duty, teind, and other public burdens, affecting the said lands of Lochquarter.” Scott executed the precept in this disposition, by taking a base infeftment under Lawson the disponer. John Scott possessed upon this title until his death.
In February, 1773, James Scott, the son of John, obtained from John Hamilton the younger a precept of clare constat, for infefting him, as the heir of his father, in the lands conveyed to his father by Lawson's disposition of 1755, and took infeftment in virtue of the precept. He then paid Hamilton the feu-duty and other burdens stipulated in the reddendo of the disposition to his father, and continued to do so until the year 1828, when Hamilton became divested of the superiority under his bankruptcy.
On 14th November, 1832, James Scott disponed the sixteen
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In a process of locality of the parish in which the lands in question were situated, in which a discussion arose between the appellant, on the one hand, and the common agent, James Scott, on the other, as to the stipend allocated in cumulo upon the lands held by the appellant and Scott, John Scott entered appearance, and in one of his pleadings, stated, that the stipend consisted of old stipend which had always been paid by the appellant and his authors, as owners of the warrandice lands, and “as superiors of the respondent's sixteen acres.”
James Scott died, and the appellant then required John Scott to take an entry with him as superior. This being refused, the appellant brought action of reduction of Scott's titles, with an alternative conclusion for declarator of non-entry in case a good title should be exhibited.
John Scott pleaded in defence, a denial that the appellant was his superior, inasmuch as the titles shewed that the lands conveyed in 1758 to Hamilton, the appellant's author, were limited to those “possessed by James Thomson,” and could not include the lands conveyed to John Scott in 1755, described as “possessed by John Scott” himself. That the recognition by his, John Scott's, author of the authors of the appellant, as their superiors, had arisen from mistake, and that he was entitled,
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The Lord Ordinary ordered cases by the parties, and thereafter, on 24th May, 1839, pronounced the following interlocutor:—
“The Lord Ordinary having heard counsel in this cause, and thereafter considered the record, cases, title-deeds produced, and whole process, Finds, that John Smith” (Scott) “the defender's predecessor, acquired the property now held by him, (being sixteen acres of the lands of Lochquarter,) from James Lawson, a predecessor of the pursuer, by disposition, dated 21st May, 1755, containing both procuratory of resignation and precept of sasine, entitling the disponee and his successors to hold the lands either a me, vel de me, it being expressly declared as usual, that the one holding should be without prejudice to the other: Finds, that the said John Scott having been infeft base on the said disposition, possessed the lands till his death, without taking any other steps to complete his title: Finds, that on the death of the said John Scott, his son, James Scott, in 1773, obtained a precept of clare constat from John Hamilton, another predecessor of the pursuers, who had acquired the remaining part of the lands of Lochquarter from Lawson, and held himself out, or was understood to be then mid-superior of Scott's said portion thereof: Finds, that the said property originally sold to Scott has passed through various other hands since 1773, although no other title has been made up under the mid-superior, except by the said precept of clare constat: Finds, that by the original disposition by Lawson to Scott, the latter and his successors are taken bound to free and relieve the disponer of three pounds Scots per annum, as a proportional part of the cumulo feu-duty effeiring to the whole lands called Lochquarter, which portion of feu-duty Scott and his successors paid to Lawson, Hamilton,
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and the pursuer, successively, down to a period recently anterior to the raising of this action, leaving them to settle for the same with the over-superior: Finds, under the state of the titles exhibited in this action, that the present defender, as a successor of James Scott, the original purchaser, is now entitled, in virtue of the assignation of writs in the successive conveyances of the said property, to take up the unexecuted procuratory of resignation contained in the said conveyance by Lawson, the common author both of defender and pursuer, to the said James Scott; and that the pursuer is not entitled, any more than his author Lawson would have been entitled, to compel the defender to continue to hold under and take an entry from him, when the defender has intimated that he prefers to hold a me: Therefore, sustains the defences, assoilzies the defender, and decerns; reserving to the pursuer to claim relief from the defender, as accords, of the portion of the feu-duty payable to the over-superior for the portion of the original property alienated by Lawson, to the said James Scott, in terms of the burden contained in the original conveyance: Finds the defender entitled to expenses, subject to modification; and, in the meantime, allows an account of the expenses to be given in, and remits the same, when lodged, to the auditor to tax and report. Note.—Had the merits of this case depended solely on the first plea urged for the defender, the Lord Ordinary would have great doubt of it. It was pleaded that the pursuer had not a proper connected title to the superiority (or rather mid-superiority) of the defender's land, as it was said that James Lawson, the common author of both parties, only gave a conveyance to John Hamilton (subsequent to the sale to Scott) of the lands of Lochquarter, as then possessed by James Thomson, which it is said excluded Scott's portion, which was then possessed by himself. There would have been very great weight in this plea, had not Scott's son taken an
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entry, in 1773, from Hamilton, and paid him and his successors the portion of the general feu-duty for a long tract of years afterwards. In this view, when the whole lands of Lochquarter were conveyed to Hamilton, it is rather thought that the reference to Thomson's possession must be held as merely descriptive, and not as taxative; and the Lord Ordinary, after such a lapse of time, can hardly go into the defender's notion that the precept of clare constat in 1773 was taken by Scott's son from Lawson by mistake. But, even assuming Lawson to have conveyed to Hamilton the temporary mid-superiority constituted over Scott's part of Lochquarter by the base infeftment of the original disponee, and the precept of clare constat taken by his son, and that this mid-superiority has descended to the present pursuer, the question remains, whether, in the state of the defender's title as produced, the pursuer can force the defender, and all his successors, to continue to enter with him? As demonstrated in the interlocutor, the defender holds a title from Lawson, the common author of both parties, with procuratory and precept, entitling him to a double manner of holding, and when the pursuer insists, in this action, that the defender (and of course all his successors in perpetuum) must enter with him, it can only be on the assumption that the defender has lost the option of going to the over-superior, given to his author by Lawson's conveyance of 1755. The Lord Ordinary, however, has from the first viewed that as a very startling proposition in the law of title, and he conceives it to be alike contrary to the clearest and best recognized principles of feudal law. When a party gets a conveyance from another, with procuratory and precept contained in the same deed, and when possession is taken and maintained on that deed, the faculty, or privilege of using the procuratory, never lapses by prescription or otherwise; the procuratory, while unexecuted, passes under the successive assignations of writs contained in each conveyance of the property; and many instances have occurred in practice, in which procuratories, when it was expedient to use them to confer a proprietary title, have been used at the distance of a century.
In this view, the Lord Ordinary thought it material to ask the
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pursuer at the debate to explain what was the precise legal ground on which he contended that the Scotts had lost the faculty or option of a double holding, contained in the original conveyance. This question is now attempted to be answered in the pursuer's revised case. In one branch of his argument, he seems to contend that the defender's predecessor, by entering with the pursuer's predecessor, in 1773, had made his election, and chosen for ever to hold base under the mid-superior; and, in another view, he seems to maintain that the option of using the procuratory is now lost by prescription, in consequence of the elapse of sixty-six years since the date of the precept of clare constat. But the idea of the disponee ever having made, or of his having been obliged or presumed to have made, any election in this matter, to be final and conclusive against his use of the procuratory, is not only a new and unauthorized proposition in conveyancing, but seems to be contrary to the plainest meaning and object of the deed giving the option of double holdings in this and in the innumerable cases of the same description which occur in practice. The alternative holding was notoriously introduced to save the rights of parties from being affected by want of confirmation, till it was convenient for a disponee to go to the over-lord; it was a form of right by which a purchaser could hold under the seller and his heirs, so long as he chose, and then go to the over-superior when he wished to hold directly under him. The lower right is given without prejudice to the higher; and the disponee, instead of being limited to one only of the modes of holding, was entitled to adopt the one after the other, as suited his convenience. As little is there any room for the plea of prescription. On the contrary, when it is considered that the procuratory of resignation is a mere faculty or privilege, contained in a feudal progress, it would be contrary to every principle of law to hold that it could prescribe by any lapse of time. It would be a hazardous position, indeed, to maintain that any clause or right could be lost by prescription which was contained in the very deed on which a proprietor was possessing his estate.
If, however, the procuratory of resignation be still executable by
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the defender, it seems to put an end to the present action. If the defender be still entitled to enter with the over-superior, he cannot be forced to enter with the pursuer. Indeed, the relative obligations between mid-superiors and sub-vassals who have a doubleholding, are peculiar; the continuance of the relation on both sides is voluntary, and has long been so regarded in law. Accordingly, in one well known case, where a seller had alienated an estate with procuratory and precept, the heir of the seller was found not obliged to make up any title to enable him to give an entry to the purchaser's heir, who had taken a base infeftment. (See case of Dundas, 1769, Morr. p. 15035.) And if the pursuer had not had occasion to complete a title here, in respect of his right to the other parts of Lochquarter he certainly could not have been compelled to take up this mid-superiority, to give an entry to the defender. The pursuer asked how the infeftment of Scott, jun. on the precept of clare constat in 1773, could be extinguished on the record, if the defender does not take the entry now required, to which it is obvious to answer, that when the present defender executes the procuratory of resignation, and gets a charter from the over-superior, he can grant a precept of clare in his own favour, and resign ad remanentiam. This, too, is obviously the best title for the defender to expede.
The pursuer seems mainly to rely on certain dicta in the opinion of the Judges in the case of Cheyne against Thomson, in the Second Division, in 1832, (10 Shaw, p. 622,) and particularly on the opinion of Lord Cringletie, which was contrary to the rest of the Court, as supporting his right to insist on the defender continuing his vassal. But the Lord Ordinary views the principles laid down by the great majority of the Court, in that case, as decidedly favourable to the defender's plea. The majority of their Lordships considered the option given to a purchaser like Scott, as res merœ facultatis, not prescribable; and they expressly laid it down that such a faculty was not lost non utendo. It is true that the heir of the party base infeft in that case never took any charter or precept of clare constat from the seller or his disponee; and
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although one of the Judges, (Lord Justice Clerk,) certainly noticed that circumstance in his opinion, he gave no opinion what effect or consequence would have followed from such an entry, if it had been taken out by the purchaser, because there was no occasion to anticipate that question, which was not then before the Court. The Lord Ordinary thinks, that the very granting of that precept. “by one of the pursuer's predecessors, strengthened the obligation on him to homologate and give effect to the procuratory when the purchaser's successors chose to use it, as the precept of clare constat was a recognition and homologation of the original right given to Scott in all its points, and consequently inter alia of the procuratory of resignation therein contained. Similar arguments used to arise of old, when there was a doubt whether the vassals of church lands could go to the Crown for an entry under the clause in the acts of annexation declaring these lands to hold of the Crown, if they had nevertheless taken a charter from the lord of erection subsequent to the annexation. Even in that peculiar case it required an express statute, 1661, c. 53, to prevent the vassal from going to the Crown; but the option of using the procuratory in such a case as the present seems to have been all along admitted by old lawyers. In the argument in the case of Heriot's Hospital against Hepburn, in 1714, Morr. p. 7988–7996–7, this was conceded on both sides.
These are the views on which the Lord Ordinary has decided this case. He proposes to give the defender the greater part of his expenses, because he not only thinks the case a clear one, even on the defender's title, (as explained from the first in the defences,) but because, where a feuar holding a property only of a few acres is brought into the Supreme Court on such a question, it would be ruin to him if he did not get his costs. But it is necessary that that part of the expenses incurred by the defender's denial of the pursuer's title should be deducted, as it is thought that the defender was wrong in that plea.”
A reclaiming note was presented against this interlocutor, on the 6th of December, 1839, and, on advising it, the Court
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“The Lords having advised this cause, and heard counsel for the parties, adhere to the interlocutor reclaimed against, and refuse the desire of the reclaiming note; find additional expenses due; and remit to the auditor to tax the account thereof, and to report.”
Against these interlocutors the appeal was taken; and as the defenders in the Court below did not support the judgment of the Court below, either in printed cases, or by appearance at the bar, the appeal was heard ex parte.
Pemberton, and E. S. Gordon, for appellant.—I. The first question is the construction of the title-deeds,—Whether the description, in the original conveyance to the appellant's authors, is to be held to be taxative, as considered by some of the Judges below, or merely demonstrative, as held by others of the Judges. The claim of the appellant is not to the dominium utile of the lands, but to the mid-superiority only, and this, it is admitted, he and his authors have possessed since the year 1773 downwards. The mere mention, in the conveyance to Scott, in 1775, of his possession or occupation of the lands, cannot, therefore, have any relevancy; for a party possessing, for forty years, under a title, with parts and pertinents, cannot be affected by a title in another, who has not had possession, Stair, ii. 3, 73; Leven v. Finlay, Mor. 10816; Magistrates of Perth, 8 S. and D. 82; Cumming v. Fyfe, 8 S. and D. 326; and confessedly the midsuperiority, has not been enjoyed by any other party. A mere reference to possession will not make the description taxative; for this purpose there must be reference to specific marches and boundaries, Stair, ii. 3, 26.; Ersk. ii. 6, 6; Uve v. Anderson, 12 S. and D. 494, where a mention of specific measurement was disregarded, and the description of boundary alone looked to, although the measurement was more clearly ascertainable than the boundaries.
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[
Yes.
[
No.
[Then the party could not go out of the boundary because of any words?]
Exactly.—And the Court preferred the boundary to the measurement.
[
II. But second, the respondent says, that admitting him to have held, under the appellant and his authors, as mid-superiors, since 1773, his titles give him an alternative manner of holding, and this being res merae facultatis, does not prescribe, and it is open to him, at any time, to revert to the procuratory in the disposition of 1775, and elect to hold of the superior lord.
[
No. He may elect, toties quoties, so long as there is no mid-impediment. In this case there are several objections to the vassal so doing:—1. It is assumed by the Lord Ordinary, that the respondents have a right to the procuratory; but they have not averred on the record, or produced evidence to shew that their titles contain any assignation of writs, so as to carry the procuratory of resignation in the disposition of 1755. 2. Even
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[
By compelling Hamilton by action to resign in the hands of the superior in favour of himself.
[
It was not raised before the Lord Ordinary at all; but a hint was thrown out in the course of the argument before the Court, but counsel did not come prepared to argue it.
The disposition contained an obligation to infeft by a double manner of holding, a me vel de me, in the common form, a procuratory of resignation, and precept of seisin; and an engagement to relieve the granter of the sum of L.3 Scots of feu-duty, as the proportional part of the cumulo feu-duty effeiring
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About three years afterwards, namely, in 1758, Lawson disponed to John Hamilton, “all and haill his fourth part of the lands of Shawtonhill, called Lochquarter,” as the same were then possessed by James Thomson. Hamilton was infeft in 1759. The present action was brought by Gardner, in whom Hamilton's estate, had become vested, against John Scott, the grandson of the original disponee of the sixteen acres, to compel an entry from him, as singular successor, and payment of the usual composition of a year's rent.
The first question in this case is, whether the mid-superiority of the sixteen acres passed to Hamilton under the above disposition to him from Lawson? I agree with the Lord Ordinary, that if the question had arisen recently after the disposition, and there had been no collateral circumstances to shew what was included in it, and to what it extended, it might have been difficult to say that the mid-superiority of the sixteen acres passed by this conveyance. But in 1773, James Scott, the only party interested in disputing Hamilton's title, was infeft on a precept of clare constat from Hamilton, and thereby acknowledged his title to the superiority, paying him the feu-duty of L.3, the proportion stipulated in the original disposition to John Scott; and this payment has been continued down to the commencement of the present suit, a period of more than sixty years.
A farther acknowledgment of the right took place in 1824, in a process of locality then depending, in which it was contended by John Scott, the son of James, and the then owner of the sixteen acres, that Gardner, whose title was deduced from Hamilton, was the superior of the sixteen acres held by Scott. This formal acknowledgment of the title for so many years by the proprietors of the sixteen acres, compels me to read the
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If this be so, the next question is as to the effect of the confirmation of Hamilton's title by the over-lord. It is not disputed, that under a disposition to hold a me vel de me, the disponee may, at any time, elect to hold of the superior, and apply for a confirmation of his title. This right is merœ facultatis, and is not barred by time. But in a case like the present, where the mid-superiority is disponed to another, and the disponee is infeft by the over-lord, a medium impedimentum is created, which must be removed, by reduction or otherwise, before this right can be exercised; and if this state of things be acquiesced in, and the party do not vindicate his right, he may be barred by prescription. The acquiescence in this case has been for a period more than sufficient for that purpose, and there is therefore, I think, subject to the next question, an end of the claim.
The remaining question relates to the effect of the warrandice. The disposition by Lawson to Scott conveyed “all and haill his fourth part of the lands of Shawtonhill, &c. in real warrandice of the sixteen acres.” It is argued, that this warrandice is still in force, and that, as the pursuer is in possession of the warrandice lands, he cannot enforce his present claim against the defenders, because, if successful, he would be bound to indemnify the parties by reason of the warrandice; and that to prevent this circuity, the law interposes in the first instance. The question, therefore, is, whether the warrandice be still in force? or whether this also is barred by prescription ? This depends upon the point whether there has been any eviction in this case, and if so, at what time; for by the statute of 1617, the period of prescription runs from eviction. Some of the learned Judges
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But if, by the disposition of the mid-superiority to Hamilton, and the infeftment under that disposition, Scott was prevented from obtaining confirmation of his title, in the usual course, by the over-lord, I consider this to have been an eviction, and that the prescription would run from that period. It follows, therefore, that there is nothing to prevent the pursuer succeeding in his present suit. I recommend your Lordships, therefore, to reverse the judgment of the Court of Session.
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With respect to the effect of the deed of 1773, and Hamilton taking infeftment of the whole, and Scott, the son of the grantee, completing his title under Hamilton, it seems to me, that it was a consummated transaction at that time. If Hamilton was not entitled to the mid-superiority, and if the warrandice was to be resorted to, there was at that time an eviction, because, at that time, Hamilton takes a title to the whole, including the sixteen acres, from the superior under the Crown. Then, that was an eviction, and at that time Scott might have put his warrandice in force. But instead of doing that, what does he do P He completes his title to the sixteen acres under Hamilton, undertaking to pay him the L.3 a year, as the proportion of feu-duty in respect of the sixteen acres, and they have gone on for about sixty years paying the L.3. My Lords, after that, it seems to me, that it is utterly impossible to put that warrandice in force. The warrandice would have run in sœculâ sceculorum; there would have been no statutory limitation or prescription, whereby such a claim would be defeated.
Under these circumstances, it seems to me, that the pursuer was clearly entitled to treat the defender as his vassal, and to call upon him to enter under him, the pursuer, as his superior. Unfortunately, the respondent did not appear at the bar, which made us more cautious in considering the case, particularly as there was a great division of opinion among the Judges, and we felt ourselves under the necessity of reversing their interlocutor; but after having given the most anxious consideration to it, I consider, that the opinion expressed by my noble and learned friend is entirely in accordance with, feudal principles well
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Mr Anderson.—My Lord, with regard to the costs, the Court of Session gave costs against us.
Mr Anderson.—Your Lordships will decern in terms of the libel, and find the pursuer entitled to his costs.
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Ordered and Adjudged, that the interlocutors complained of in the appeal be reversed. And it is farther ordered, that the defender, in the action in the Court of Session, (respondent here,) do pay or cause to be paid to the pursuer in such action, (appellant here,) the costs of the proceedings incurred by the said pursuer in the said Court of Session; and it is also farther ordered, that the cause be remitted back to the Court of Session, in Scotland, to do therein as shall be just and consistent with this judgment.