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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Cowie v. Muirden [1893] UKHL 275 (20 July 1893)
URL: http://www.bailii.org/uk/cases/UKHL/1893/31SLR0275.html
Cite as: 31 ScotLR 275, [1893] UKHL 275
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SCOTTISH_SLR_House_of_Lords
Page: 275↓
House of Lords.
(Before the
v.
(Ante, vol. xxviii. p. 605, and 18 R. 706.)
Subject_Personal or Real — General Disposition — Annuity Declared to be a Real Burden — Completion of Title by Notarial Instrument — Titles to Land Consolidation Act 1868 (31 and 32 Vict. c. 101), sec. 19, and Schedule L.
Expenses — Bankruptcy.
Facts:
In a general settlement a testator conveyed to his son his whole estate, heritable and moveable, “but declaring that this disposition and conveyance is granted and is to be accepted of under the following burdens, … which are hereby declared to be real burdens on the estate hereby conveyed.” These burdens included, inter alia, an annuity of £35 in favour of the disponee's sister. The disponee completed his title by notarial instruments (in terms of Schedule L, sec. 19, of the Titles to Land Consolidation Act 1868), each of which, after setting forth the conveyance in the general disposition, and describing the several subjects in which the disponer was infeft, narrated at length the clause declaring the said authority to be a real burden. These notarial instruments were duly recorded.
Held ( rev. the decision of the Second Division) that a real burden was created on the lands.
When the trustee in a mercantile sequestration engages in litigation, he is personally liable for costs to the opposite party.
This case is reported ante, vol. xxviii. p. 605, and 18 R. 706.
Jane Cowie appealed.
At delivering judgment—
The ground upon which it was contended that, under the circumstances to which I have referred, the annuity was not effectually constituted a real burden upon the heritable subjects, was that the title of Alexander Cowie wasderived from a general disposition which did not contain a description of the lands to be affected. It is no doubt true that a real burden can only be constituted upon lands specifically described; but it is equally clear that even if lands specifically described in a disposition be thereby declared subject to a burden, that does not in itself make the burden a real one; it can only be made real by infeftment. Before the Titles to Land Act was passed, a disponee who was not an heir could only get infeftment in land conveyed to him in general terms by obtaining a decree in an action of adjudication followed by a charter of adjudication. By this process a real right was obtained to the lands specifically described in the charter; but this real right was subject to all debts which having been made a burden on the general conveyance by apt words in the dispositive deed, had been feudalised and become real burdens.
The question which is to be determined in the present case is, whether where a title is completed, not in the manner which was alone available prior to the Titles to Land Act, but in the manner which is provided for by the enactments contained in that Act, the title obtained by the appropriate instruments in the form prescribed by Schedule L can be and ought to be effectual to make burdens, which by appropriate words are declared to be burdens in the dispositive clause of a general conveyance,
Page: 276↓
Now, it appears to me that the design of this statute was to provide a simpler method of completing titles than that which had been heretofore in use, and that where the dispositive clause in the general conveyance purports to subject the land conveyed to certain real burdens, it is only right that the notarial instrument should follow the terms of the dispositive clause, including the declaration of these real burdens. I can see nothing in the statute or in the schedule to point to another conclusion; and inasmuch as the former method of making up titles is in no way put an end to, it would certainly be strange if a disponee by making choice of a particular method of making up his title should be able to obtain a real right in the land free from any burden, whereas by making it up in another way he could only obtain a real right subject to the burden. I cannot think that there was any such intention in the Legislature when this statute was passed, and I confess I cannot myself feel any difficulty in giving to it the construction contended for by the appellant.
The difficulty chiefly felt in the Court below, which led, I think, to this decision, arose from the authority, or the supposed authority, of the case of Williamson v. Begg, May 12, 1887, 14 R. 720, as determining the question which now comes before your Lordships for consideration. Williamson v. Begg was treated as having decided that the statute to which I have referred, and the schedule in so far as it related to the statement of the real burdens, only applied where the disposition was specific as well as general. I do not think that any such point was decided in the case of Williamson v. Begg. That case was an action brought by a person to whom certain rights had been given under a disposition, to recover damages against a law-agent who had been concerned in making up the title, on the ground that he had been guilty of a breach of duty in not having had it made up in such a form as to constitute this obligation a real burden, whereby the person who had the right to the obligation had been damnified. In Williamson v. Begg the words which purported to declare that these obligations should be real burdens were not contained in the dispositive clause; and it was of course incumbent upon the pursuer in that case to make out that if the defender had done his duty the result would have been to create this obligation a real burden. He failed, to my mind, to establish any such duty on the part of the law-agent. The dispositive clause was set out in terms in the notarial instrument, but in that dispositive clause was not contained the language which it was suggested created the real burden; it was found in a subsequent part of the disposition. Therefore under those circumstances the foundation upon which the claim of the pursuer was rested entirely failed. It is quite true that in the judgment of the learned Lord President observations have been found which do appear to indicate an opinion on his part such as I have alluded to, that the provision in the schedule—the statement of the real burdens—is only applicable where the disposition is specific as well as general. With all respect, I have already given my reasons for differing from the view of the Lord President; and I do not find in the judgments of any of the other learned judges language which indicates that they were resting their judgments upon such a ground.
I have only to add that I have carefully perused the judgment of Lord Rutherfurd Clark in the Court below, and that I entirely concur in all that that learned Judge has said.
After the death of the testator, Alexander Cowie, as his general disponee, completed titles to various heritable subjects in which the deceased had been infeft, by expeding and recording notarial instruments in terms of section 19 of the Titles to Land Consolidation (Scotland) Act 1868 (31 and 32 Vict.
Page: 277↓
It is material to notice that in the settlement the burden is amply introduced as qualifying the words of disposition. If the testator had in the dispositive clause described any particular lands, it would have attached to these lands. So also if the testator had executed special conveyances in terms of the notarial instruments expede by his son, it would have constituted a valid incumbrance upon the lands conveyed. Upon that point I entertain no doubt, and it was not disputed by the respondent's counsel.
Alexander Cowie's estates were sequestrated, and the respondent, who is trustee in the sequestration, brought this action in order to have it found and declared that the annuity has not been validly constituted a real burden upon the bankrupt's land. The Lord Ordinary decerned in terms of the conclusions of the summons, and his interlocutor was affirmed in the Inner House by a majority of two Judges against one.
All the learned Judges were of opinion that this case is directly ruled by Williamson v. Begg, 14 R. 720, decided by the First Division in 1887, which they accepted as res judicata, to the effect that no real burden which a general conveyance proposes to impose, however apt the language in which it is expressed, and however intimate its connection with the words of conveyance, can be specialised and feudalised by means of a notarial instrument under the Act of 1868. The Lord Justice-Clerk (Macdonald) indicated that but for that authority he would have decided in favour of the appellant. Lord Rutherfurd Clark was very strongly of opinion that the decision of the First Division was wrong. Lord Trayner was the only Judge who approved of the decision in the sense in which it was accepted.
I am by no means satisfied that the question arising for decision in this appeal was really decided by the Court in Williamson v. Begg. The action in that case was at the instance of the annuitant, who claimed damages from the law-agent by whom the titles of the disponee were made up, in respect of his failure to make the annuity a valid burden on the lands. In other respects the circumstances of that case and the present are very similar, with this important difference, that in Williamson v. Begg the annuity was not in apt terms made a real burden by the general conveyance, and would not have constituted a valid burden if the conveyance had been special. The disponee was therefore under no obligation to convert into a real, that which his author had only made a personal burden.
From an examination of the report I infer that the decision of the Court in Williamson v. Begg went upon these two grounds—(1) that the declaration relating to the pursuer's annuity merely gave rise to a personal obligation, and was ineffectual to create a real burden in any conveyance; and (2) that the defender in making up the titles of the disponee was not employed by, and therefore owed no duty to, the pursuer. I do not doubt that either of these reasons was sound and in itself sufficient to sustain the judgment. With the first two paragraphs of the late Lord President's opinion I agree. But I think Lord Rutherfurd Clark is warranted, by the terms of the third paragraph, in ascribing to that eminent Judge the doctrine that the direction in Schedule L, with respect to the insertion of real burdens, only applies in those cases where the conveyance is special as well as general, and the burden has already been duly imposed upon lands specially described. Lord Mure's judgment does not necessarily imply his concurrence upon that point, and my noble and learned friend opposite (Lord Shand) takes no notice of it in his opinion, which proceeds on the view that the declaration merely created a personal obligation on the disponee, which he was not bound to convert into a real burden, there being no condition or declaration that he should do so. Lord Adam's concurrence in the result at which his brethren had arrived does not, in my opinion, express his assent to all the views of the Lord President.
Apart from the authority, real or supposed, of Williamson v. Begg, the point does not appear to me to be attended with any difficulty. Until the passing of the Titles to Land (Scotland) Act 1858 (21 and 22 Vict. c. 76), sec. 12, which was repealed by the consolidating statute of 1868, a disponee who was not the heir could not get infeftment in land generally conveyed to him except by obtaining decree in an action of adjudication directed against the disponer's heir, followed by a charter of adjudication. The effect of his pursuing that course was not only to give him a real right in the lands as specifically described in the decree and charter, but to feudalise, as a real burden upon those lands, every debt which had been duly made a burden upon the general conveyance. The object of the legislation of 1858 and 1868 was to provide an alternative and less cumbrous method of vesting feudally in the disponee the estate and interest conferred upon him by the general conveyance. It can hardly have been the intention of the Legislature to give the disponee who avails himself of that method an absolute and unqualified estate in cases where his author has by his words of disposition only given him a limited or qualified right. Yet that is the practical result of what the majority of the learned Judges have held to be the law applicable to this case.
Section 19 expressly provides that a notarial instrument, in the terms prescribed by Schedule L, shall, when recorded, place the disponee in the same position as if a conveyance of the lands therein specified had been executed in his favour by the grantor of the general disposition, and had
Page: 278↓
I shall only add that I concur in every word of Lord Rutherfurd Clark's reasoning upon the construction and effect of the statute. I accordingly concur in the judgment which has been moved by the Lord Chancellor.
Alexander Cowie, the bankrupt, in whose right the respondent, as trustee on his sequestrated estate, maintains the present action, was the disponee under the general disposition and settlement of his father the late Thomas Cowie. That deed did not convey the testator's lands by any special description of them, but did convey the “whole heritable estate” belonging to the testator, and as part of the dispositive clause it was declared that the conveyance was granted under the real burden of the annuity given to the appellant. The disponee in completing his title by notarial instrument, recognised the validity of the real burden in so far as he could do so; for after setting forth the various titles under which his father held different lands, and giving the special descriptions of these, he embodied in the instrument the full terms of the dispositive clause of the general settlement, including that part of it which declared the annuity to be a real burden on the lands. In this way the real burden, by the act of the general disponee, entered the register of sasines, by which at least full notice of it was given to anyone proposing to have any dealings relating to the lands. In this state of the title the only question to be determined is, whether the terms of the general conveyance as the first step in the constitution of the real burden, warranted the second step of feudalising it, by infeftment or registration under the notarial instrument. The decision in effect is, as expressed by Lord Wellwood, that the real burden was not effectually constituted, because there was no proper warrant for the act of the notary in expeding and recording the notarial instrument.
Their Lordships in the Court of Session have, I think, all held that this question was, in effect at least, decided by the case of Williamson v. Begg, in the decision of which I took part. I think this is not so, and I further think that this conclusion has been formed by the omission to observe one important fact, which appears from the report ( 14 R. 720). In that case there was a clear defect in the first step towards the constitution of a real burden, for the declaration founded on was no part of the dispositive clause. This is expressly stated by the reporter, and having had an opportunity of seeing a copy of the deed, I find that at the end of the dispositive clause, and before any mention of real burdens, these words were interposed—“And I hereby nominate and appoint the said Thomas Beveridge to be my sole executor.” It is true the learned Lord President in the earlier part of the first part of his opinion referred to the absence of any special description of the lands, in the view, as I think, of more fully discussing what would be the effect of a notarial instrument under the statute, which he does in the third paragraph; but his Lordship added—“But there is a further reason why this declaration cannot receive effect. It cannot be followed by infeftment. The only way of effectually constituting a real burden is to insert a provision to this effect in the dispositive clause, so that it shall enter the sasine.” And his Lordship goes on to say with reference to this point—“But I do not think that in the end it was seriously contended that the declaration had the effect of creating a real burden”—meaning obviously that it was not contended that the deed was so expressed as effectually to form the first step in the constitution of a real burden, to be completed by a recorded notarial instrument.
Professor Bell in his Principles, section 920, states—“The burden must be declared in the dispositive clause,” and there is abundant authority for this. The notary completes his duty by embodying that clause, with any mention of burdens which it contains, in the notarial instrument. The principle to be applied must be the same, whether the matter interposed between the dispositive clause and the declaration intended to create the real burden be expressed shortly in a few lines or should occupy pages of the manuscript. In either case the interjected provision or provisions prevent the subsequent declaration from forming part of the dispositive clause of the deed. Accordingly, such recollection as I have of the case, after the lapse of upwards of six years, confirmed
Page: 279↓
On the question itself, which now I think occurs for decision for the first time, I agree with the views of my noble and learned friends. I have already adverted to the fact that the disponee has himself recognised the validity of the real burden, or at least has by the mode of making up his title accepted the lands expressly under the real burden which by his act now qualifies his absolute right on the record. I should be very unwilling to hold that in such a case the disponee's own interpretation of the effect of the general disposition, and his election (even were it an election only and not an obligation) to make the burden real by registration, would not be effectual. I agree with my learned brother Lord Rutherfurd Clark in the view which he thus expresses—“He made up his title in such a form as he thought would be effectual to make the burden real. The question is whether the form was sufficient for that purpose, and that question cannot, in my opinion, depend on the rights or obligations of the grantee, but on the legal effects of the title which he has actually made up.”
This view is sufficient for the decision of the case. But I must add that I also agree in holding that a general disponee who obtains his right by a conveyance in apt terms, qualified or restricted by a declaration that the general disposition is subject to real burdens, is bound to give effect to this declaration, and can be required to do so by having these burdens entered in the register of sasines; and adopting the reasons stated by your Lordships and by Lord Rutherfurd Clark in his carefully reasoned opinion, I also hold that this can be effectually done by a registered notarial instrument under the statute, in the mode adopted in the present case.
On the question of costs, Wilson, for the respondent, submitted that costs should only be given against the respondent qua trustee.
Mr Wilson—He has a judgment of two Courts in Scotland in his favour, and I should submit that the case of Williamson v. Begg justified his proceeding.
The House reversed the decision of the Second Division and allowed the appeal with costs.
Counsel for the Appellant— T. Shaw— Greenlees. Agents— Keeping & Gloag, for A. Lawrie Kennaway, W.S.
Counsel for the Respondent— John Wilson— Le Breton. Agent— Andrew Beveridge, for Welsh & Forbes, S.S.C.