Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 154
A104/10	OPINION OF LORD WOOLMAN in the cause DRUMPELLIER & MOUNT VERNON ESTATES LIMITED Pursuer; against MARK PETER MEEHAN AND OTHERS Defenders: ________________

For the Pursuer: Sandison QC; Brodies LLP

For the Third to Sixth Defenders: Stuart QC; Morton Fraser LLP

26 September 2012

Introduction

[1] This case involves a dispute about land ownership. The parties each claim title to the extensive lands of Drumpellier and Langloan, which include Bargeddie Industrial Estate ("the Lands"). They are situated in Lanarkshire, about nine miles east of Glasgow. As yet, the subjects do not appear in the Land Register. Determining ownership therefore depends upon a scrutiny of the relevant deeds.

[2] Tracing the progress of title was formerly part of the stock-in-trade of every Scots lawyer. It is now becoming an arcane branch of the law. Accordingly, it may be helpful to begin with first principles:

"The system of land holding in Scotland was in its origin feudal. The King was early recognised as the paramount owner, and his subjects held of him, either immediately or mediately through a mid-superior, by one or other of several forms of tenure ... Those who held of the King as immediate superiors were known as Crown vassals, but as a rule they in turn were superiors of other vassals who held of them by the same tenure."

Lord Advocate v Marquess of Zetland 1920 SC (HL) 1, 9 per Lord Chancellor Birkenhead

[3] Persons who owned subjects at the farther end of the feudal chain - the vassals - held the dominium utile. Their superiors held the dominium directum. The feudal system attenuated over many years. It was brought to an end by the Abolition of Feudal Tenure Act 2000. All superiority interests were abolished on 28 November 2004. Those who then held the dominium utile acquired full rights of ownership.

[4] In this action, the pursuer maintains that its predecessors owned the dominium utile and it now owns the Lands. It argues that the defenders' predecessors owned the dominium directum. The defenders therefore have no title to the Lands. It follows that I should vindicate the pursuer's real rights by granting decree of reduction of the deeds that the defenders founded on, but only to the extent that they give rise to a conflict of title.

[5] Mr Stuart represented the third to sixth defenders at the debate. There was no appearance on behalf of the first, second and seventh defenders. Mr Stuart argued that the defenders' predecessors owned both the dominium utile and the dominium directum of the Lands. The defenders now therefore own the dominium utile. A proof before answer is therefore required to resolve the conflict of title.

[6] The parties lodged a voluminous number of deeds. They included instruments of sasine and precepts of clare constat stretching back over two centuries. Fortunately, Mr Sandison and Mr Stuart accepted that there were only a small number of critical documents. It was on these deeds that the arguments centred. To avoid cluttering this opinion with too many dates, in most instances I shall simply give the year in which a deed was recorded or registered.

The Pursuer's Progress of Title

[7] The pursuer's position can be summarised as follows. The Stirling family originally held the Lands. Their interest passed to the Buchanan family in 1809. In one form or another, the Lands have been held for their benefit ever since. Latterly, they have been held by a family trust company. The pursuer, Drumpellier and Mount Vernon Estates Limited, appears to trace the links in the chain of title as follows:

Pre 1792 Walter Stirling of Faskine

1792 Andrew Stirling

1804 Trustees for the creditors of Andrew Stirling

1807 John More (as sole trustee for those creditors)

1809 David Buchanan

1826 Robert Carrick Buchanan

1852 David Carrick Robert Carrick-Buchanan

1864 David Carrick Robert Carrick-Buchanan & his heirs

1920 David William Ramsay Carrick Buchanan and his heirs

1948 Drumpellier & Mount Vernon Estates

1966 Drumpellier & Mount Vernon Estates Ltd

[8] The pursuer's pleadings, taken together with the documents themselves, provide a fuller narrative of the progress of title. In 1792 Walter Stirling of Faskine granted a Feu Disposition of the Lands in favour of Andrew Stirling. That was followed in 1805 by an Instrument of Sasine. It appears that Andrew Stirling became insolvent, because in 1804 he disponed his interest in the Lands to three individuals as Trustees for his creditors. That was effected by means of a Trust Disposition and an Instrument of Sasine.

[9] A meeting of Andrew Stirling's creditors took place in Glasgow in early 1805. They resolved that his estate should pass to one trustee. They selected John More and conveyed the estate to him by means of an 1806 disposition and an 1807 Instrument of Sasine. In his capacity as trustee, John More disponed the subjects to David Buchanan in 1809. That was the point at which the Buchanan family's title first appeared in the General Register of Sasines.

[10] In the same year, Sir Walter Stirling granted sasine in favour of David Buchanan. His title was recorded on 30 June 1809. The Instrument of Sasine states that the subjects are to be held

"of and under ... Sir Walter Stirling and his foresaids as immediate lawful superiors of the lands in feu farm fee and heritage for payment of the feu duties therein and herein after written".

The feu duty payable was £45 Scots. On the same day Sir Walter also discharged a Bond and Disposition which Andrew Stirling had granted in his favour in security of loans. Accordingly, at the point that David Buchanan took title to the Lands, he did so as owner of the dominium utile of unburdened subjects.

[11] The Buchanan interest in the Lands then passed down through the line of male heirs:

(a) In 1826 David Buchanan disponed the subjects to his heir, Robert Carrick Buchanan. The latter's title was recorded in the General Register of Sasines in 1828.

(b) In 1852 the Trustees of Robert Carrick Buchanan disponed the subjects to his heir David Carrick Robert Carrick-Buchanan.

(c) In 1864 David Carrick Robert Carrick-Buchanan executed a Disposition and Deed of Entail "in favour of himself and the heirs male of his body, whom failing, the other heirs therein specified."

[12] The 1864 Disposition and Deed of Entail conveyed the following subjects:

"all and whole the lands and estates of Drumpellier and Langloan, bounded by Coatsburn on the east, the Bishopsburn on the west, the lands of Gartsherry on the north and the lands of Dundyvan and Bargainsholm upon the south parts with houses, buildings, yards, coalheughs and whole others, parts, pendicles and pertinents of the same ..."

[13] That description is important, because it is incorporated in the deed relied upon by the pursuer, Drumpellier and Mount Vernon Estates Limited. The deed in question is a 1966 Notice of Title, which consolidated its heritable holdings. It states:

"Be it known that Drumpellier and Mount Vernon Estates Limited ... the assumed and now the sole remaining trustees of the late David William Ramsay Carrick Buchanan of Drumpellier, Mount Vernon ... have right as proprietors in trust to ALL and WHOLE the lands and estates of Drumpellier, Mount Vernon and others

... which lands and others comprehend inter alia the whole lands and others contained in [the 1864 Disposition and Deed of Entail]"

[14] Two observations can be made about the pursuer's title.

(a) It bears to involve the transfer of the dominium utile.

(b) It reflects an uninterrupted progress from 1792 until the present day.

[15] Over the years, there have been a number of dispositions and excambions. In order to determine the precise extent of the Lands today, the pursuer instructed Michael Shand, cartographer, to investigate the position. Beginning with William Roy's Military Map of Scotland dated 1747-55, he conducted extensive research to determine the correct position. Mr Shand has produced a report dated 9 June 2010, to which he has annexed a detailed plan of the Lands.

The Defenders' Progress of Title

[16] The defenders also trace their title to Sir Walter Stirling:

1809 Andrew Stirling, with the consent of John More and David Buchanan, executed a Procuratory of Resignation ad remanentiam in favour of Sir Walter.

1817 William Stirling succeeded as Sir Walter's nearest lawful heir

1852 Thomas Mayne Stirling succeeded as William Stirling's nearest lawful heir

1911 In terms of a Notarial instrument and a disposition, Thomas Mayne Stirling's testamentary trustees transferred his interest to Thomas Willing Stirling

1930 Thomas Willing Stirling died

[17] In the defences, some stress is laid upon the 1809 deed. It appears to have been granted because through error the superiority had passed to Andrew Stirling. It was agreed that it should be returned to Sir Walter Stirling. A Procuratory of Resignation ad remanentiam is: "a written mandate or authority, granted by a vassal, whereby he authorises his feu to be returned to his superior ... to remain with the superior as his property": Bell's Dictionary and Digest.

[18] Mr Stuart did not found to any great degree upon this deed in his oral submissions. In my view he was right to take that approach. The 1809 deed describes David Buchanan as "purchaser of the lands of Drumpellier and Langloan". There is no suggestion therefore that he was anything other than the owner.

[19] Between 1930 and 1998 little seems to have happened. In 1998, however, the Sheriff of Tayside, Central & Fife at Falkirk appointed the first defender, Mr Meehan, to be the testamentary trustee to the late Thomas Willing Stirling. It was not explained why this event took place.

[20] Two years later, the first defender executed a disposition in favour of the second and third defenders ("the 2000 disposition"). It states:

"I, MARK PETER MEEHAN, Solicitor, Ayr, the testamentary trustee of the late THOMAS WILLING STIRLING, of Muiravonside in the County of Stirling, acting under his Trust Disposition and Settlement dated the Thirtieth Day of October in the year Nineteen hundred and Twenty nine and the Codicil thereto dated the Twenty fourth of February in the year Nineteen hundred and Thirty and both registered in the Books of Council and Session in the Fifteenth day of March in the year Nineteen hundred and Thirty and as such trustee uninfeft proprietor of the subjects and others hereinafter disponed, and having power to sell the said subjects FOR NO CONSIDERATION ..."

[21] The subjects are described as follows:

"(In the First Place) ALL and WHOLE the lands of Drumpellier and Langloan, bounded between Coatsburn on the east; Bishopsburn on the west; the lands of Gartsherry on the north; and the lands of Dundyvan and Bargamshold on the south; with houses, biggings, yards, outsets, insets, cottages, mosses, mines, meadows, mills, multures and sequels of the same, ... coals, coalheughs and whole other parts, pendicles and pertinents of the same whatsoever ... all as described in the Notarial instrument in favour of Mrs Anna Stirling and Mark Bannatyne as trustees [of the late Thomas Mayne Stirling] recorded in the General Register of Sasines on the Fourth day of March [1911]; and

(In the Second Place) ALL and WHOLE the said lands of Drumpellier and Langloan and others ... described in the Notarial instrument in favour of the said Mrs Anna Stirling and Mark Bannatyne as trustees ... recorded in the General Register of Sasines on the Sixth day of March [1911]."

The notarial instrument was in fact recorded on 6 March 1911. The reference to 4 March is a clerical error.

[22] Between 2000 and 2004 there followed a series of five further dispositions in respect of part or all of the Lands. The dispositions were granted in favour of one or more of the defenders. Two observations can be made about the defenders' title:

(a) None of the dispositions relied upon by the defenders involved the payment of any consideration.

(b) The defenders do not claim that they or their predecessors have possessed the Lands.

[23] Against that background, Mr Sandison described the defenders' conduct as a form of "title raiding". He maintained that they had used the superiority title to falsely claim title to the dominium utile. He characterised the 2000 disposition as "a grant in fraud" of the pursuer's rights. In the absence of hearing witness testimony, I prefer not to come to a concluded view upon this matter. However, it justifies close scrutiny of the defenders' title.

The 1911 Disposition

[24] Two deeds relating to the defenders' progress of title were granted in March 1911. The testamentary trustees also granted a disposition conveying Thomas Mayne Stirling's interest in the Lands:

"We Mrs Anna Stirling Widow of Thomas Mayne Stirling of Muiravonside ... and Mark Bannatyne Solicitor Glasgow the remaining trustees appointed by and acting under the Trust Disposition and Settlement granted by the said Thomas Mayne Stirling ... and with relative Codicil ... and as such Trustees standing heritably vest in the dominium directum or superiority hereinafter disponed for certain good causes and considerations but without any price being paid therefore Do hereby give Grant and Dispone to and in favour of Thomas Willing Stirling ... All and whole the lands of Drumpellier and Langloan.

... together with our whole right title and interest as Trustees foresaid present and future in the lands and others above disponed in the first and second places"

I shall refer to this deed as "the 1911 disposition". It contains an identical conveyancing description to the one in the 2000 disposition. Although the 2000 disposition refers to the notarial instrument, the parties agree that the 1911 disposition is the critical deed. It determines the interest held by Thomas Willing Stirling to which the defenders now lay claim.

[25] If the 1911 disposition only conveyed the dominium directum, then there is no conflict of title. The pursuer has the real right to the Lands. It is entitled to vindicate its ownership by obtaining decree of reduction in these proceedings. If, however, the 1911 disposition conveyed both the dominium utile and the dominium directum, then there is a conflict of title. Both parties would appear to own the Lands. A proof before answer would be necessary to resolve matters.

Construction of the 1911 Disposition

[26] A disposition of the dominium utile may look very similar to a disposition of the dominium directum. This has the potential to cause confusion. Certain rules emerged to resolve doubtful cases. The leading case is Orr v Mitchell (1893) 20 R (HL) 27. At first instance, the Lord Ordinary held that the phrase "all and whole the lands" included the coal under the subjects. That decision was narrowly affirmed by a full bench: Orr v Mitchell (1892) 19 R 700. The House of Lords reversed that decision. They held that only the superiority was disponed and the right to the coal did not pass to the purchaser.

[27] Lord Watson stated that primacy should be given to the dispositive clause:

"in ascertaining the subject to which the purchaser has acquired right, the dispositive is, according to Scotch law, the governing clause of a conveyance, and if its terms are expressed and unambiguous, they cannot be cut down by evidence of a contrary intention gathered from the context." (at page 29)

[28] Lord Macnaghten was to similar effect:

"When the words in the dispositive or operative part of a deed of conveyance are clear and unambiguous, they cannot be corrected by reference to other parts of the instrument. When those words are susceptible of two constructions, the context may properly be referred to for the purpose of determining which of the two constructions is the true meaning. In order to justify a reference to the context for this purpose, it is not necessary that the language of the dispositive or operative clause should be ambiguous in the sense that without some help you cannot tell which of two meanings should be taken. The rule applies though one of the two meanings is the more obvious one, and would necessarily be preferred if no light could be derived from the rest of the deed. For the purpose of construing the dispositive or operative clause, the whole of the instrument may be referred to, though the introductory narrative or recitals leading up to that clause are, perhaps, more likely to furnish the key to its true construction than the subsidiary clauses of the deed." (at page 33, emphasis added)

[29] Applying those principles to the 1911 disposition, one notices straightaway that it contains internal cross references. The introductory narrative expressly refers to the dispositive clause and vice versa. The granters conveyed the subjects "together with our whole right title and interest as Trustees foresaid." That is a direct reference to the introductory narrative. Its terms are unequivocal. The trustees are "heritably vest in the dominium directum or superiority hereinafter disponed." In my view, the irresistible inference is that the 1911 disposition conveyed only the superiority.

[30] There are other indicators that assist in determining which interest is being conveyed: Halliday Conveyancing Law & Practice 2^nd ed vol 2, paragraph 33-93. The following factors support the construction that only a superiority was conveyed.

(a) The feu duties were assigned. That only makes sense in a disposition of the superiority. If the trustees had conveyed both interests, that clause would have been redundant. As superior and vassal, there would be no reason for Thomas Willing Stirling to pay feu duty to himself. In due course, the titles would have been consolidated: ibid 32-115.

(b) The trustees restricted warrandice to 'fact and deed' only.

(c) The trustees also stated "without prejudice to the right of our own said disponee and his foresaids to quarrel, excepting therefrom the feu and other rights of property of the said lands and others".

[31] Mr Stuart submitted that there are two contra-indicators which point toward the conveyance of the dominium utile. First the reference to 'in the first place' and 'in the second place' implies that two separate interests were being conveyed. I accept that it is unclear why these two phrases are there. They appear to duplicate one another.

[32] Secondly, the 1911 disposition specifies buildings in the dispositive clause. That is unusual in dispositions of a superiority, although the "inference is not conclusive": Conveyancing Opinions of Professor Halliday ed. Cusine p199.

[33] In my view, the construction set out in paragraph 27 must prevail. It is based upon the clear words chosen by the granters of the deed. The weight of the other evidence points in the same direction. Accordingly, I hold that the 1911 disposition only conveyed the dominium directum.

[34] I believe that construction accords with the progress of title prior to 1911. In my view, Sir Walter Stirling was the author of two distinct "title streams". One related to the dominium utile and is now held by the pursuer. The defenders derive their title from the other stream. It related solely to the dominium directum and was extinguished in 2004.

Prescription

[35] The defenders have a separate difficulty to confront. Even if the 1911 disposition can be construed as conveying both interests, it was granted without a proper title (a non domino). That is because the trustees only claimed to be proprietors of the dominium directum. Such dispositions are valid, but they require to be followed by possession for the prescriptive period. Only then can a purported transfer of the dominium utile be perfected.

[36] Despite several calls made upon them, the defenders do not aver that either they or their predecessors have ever possessed the Lands. After 1973, such possession would have to be for a period of at least ten years: Prescription and Limitation (Scotland) Act 1973. Prior to that date, a period of forty years would have been necessary.

Conclusion

[37] As I hold that the 1911 deed conveyed only the dominium directum, the deeds now relied upon by the defenders are totally void to the extent that they conflict with the pursuer's title. I therefore intend to sustain the pursuer's first plea-in-law, to hold that the defenders' averments are irrelevant and to grant decree de plano in terms of the first to sixth conclusions.

[38] Mr Stuart raised a query about the exact extent of the Lands. In response, Mr Sandison suggested that I fix a By Order hearing to deal with this question. In doing so, I note that the conclusions have been carefully framed in line with Mr Shand's report and plan.