Aberdeen Town Council v Aberdeen University

JurisdictionEngland & Wales
Judgment Date23 March 1877
Date23 March 1877
Docket NumberNo. 6.
CourtHouse of Lords
House of Lords

Ld. Chancellor (Cairns), Ld. Hatherley, Ld. O'Hagan, Lord Blackburn, Lord Gordon.

No. 6.
Magistrates of Aberdeen
and
University of Aberdeen.

PropertyTrustPrescriptionMortificationAct 1696, c. 25.

By deed of mortification the granter assigned certain sums to the town-council of a burgh to be invested and the proceeds applied towards the maintenance of two professors in a university. The funds were invested in lands, which were managed for many years by the master of mortifications, an officer of the corporation, in whose name the title was taken. Afterwards the town-council appointed a portion of the lands, including a strip of land on the sea-coast, to be exposed for sale by public roup The subjects were sold for payment of a feu-duty, and to a person who afterwards declared that he had purchased on behalf of the treasurer of the town, and the latter was infeft upon charter in his favour for behoof of the magistrates, council, and community. Soon afterwards the town-council, upon a representation that they were proprietors of the ground, obtained from the Crown a grant of the salmon-fishings ex adverso of the strip of land.

In an action of declarator and accounting brought more than forty years afterwards by the university, with concurrence of two professors interested in the mortification,held (aff. judgment of the First Division) (1) that the town-council still held the lands in trust for the mortification, and that they could plead no prescriptive right against the trust; (2) that, having acquired the fishings in the character of proprietors of the trust-property, they were bound to communicate the benefit to the trust, and hold them for behoof of the trust; (3) that the consent and concurrence of the two professors gave the university a sufficient title and interest to sue for arrears; but remitted to the Court of Session to allow the parties to amend their pleadings, and to proceed with the cause with a view to ascertain how far back within forty years the accounting should extend, and on what principles it should proceed.

(In the Court of Session July 18, 1876, ante, vol. iii. 1087.)

The town-council of Aberdeen were the trustees of certain mortified funds directed to be applied to the maintenance of two professors in the Aberdeen University. They invested the funds in the purchase of lands in 1704, the title being taken in the name of the master of mortifications, an officer of the corporation. After feuing out a considerable portion of' the lands they, in 1797, exposed the remainder, which included a strip along the sea-coast, for sale by public roup. It was sold for a feu-duty of 50 to a person who declared himself to have purchased on behalf of the treasurer of the town, and the treasurer was infeft in the lands upon charter in his favour for behoof of the magistrates, town-council, and community. Shortly afterwards the town-council, on application to the Crown setting forth that they were infeft in the lands, obtained a grant of the salmon-fishings ex adverso.

In 1874 the University of Aberdeen raised this action, with concurrence of the two professors interested in the fund. They concluded for declarator that the lands and salmon-fishings were held by the defenders in trust for the pursuers as beneficiaries under the mortification, and that the sale in 1797 was null. There were also petitory conclusions for accounting.

The Lord Ordinary (Young) found that the lands were held by the defenders in trust, but assoilzied them with respect to the fishings, and farther found that the pursuers were not entitled to an accounting, reserving to the beneficiaries themselves and their representatives to sue for arrears.

The pursuers reclaimed.

This interlocutor was pronounced by the First Division on 18th July 1876:Recall the said interlocutor: Find that the lands specified in the conclusions of the summons were purchased in 1704 by the corporation of Aberdeen with funds belonging to the mortifications mentioned in the first and second articles of the condescendence, and to four other mortifications: Find that the said lands were held by the said corporation till the year 1797 on titles expressing in gremio the several trusts subject to which the lands were so held: Find that in the year 1797 the said lands were sold by the corporation, as trustees for the mortifications, to the said corporation for its own behoof, in consideration of a feu-duty of 50: Find that the said sale was illegal and void, and that the said lands, notwithstanding the said sale, are held and possessed by the defenders on the subsisting title thereto in name of the treasurer of the burgh of Aberdeen, subject to the trusts of the said mortifications: Find that the corporation in entering into the illegal transaction aforesaid acquired or attempted to acquire the said lands as the estate of the corporation itself, for the purpose of being thereby enabled to apply to the commissioners of His Majesty's Treasury for a grant in favour of the corporation of the salmon-fishings in the Dee ex adverso of the said lands, according to a practice then prevalent of the Crown granting rights of salmon-fishing in the sea to proprietors whose lands were bounded by the shore, merely on the consideration of their being proprietors of such lands: Find that, in pursuance of such purpose, the corporation, in the year 1801, presented a petition to the Lords of the Treasury setting forth that they were absolute proprietors of the said lands in their own right, and on that ground praying for a grant of salmon-fishings in the sea ex adverso of the said lands for the benefit of the corporation: Find that the prayer of the said petition was granted, and a crown-charter in favour of the corporation conveying the said salmon-fishings was expede, which is written to the seal and registered 27th February 1804: Find that the corporation have ever since possessed and do now possess the said salmon-fishings in virtue of the said charter: Find that the corporation, being the trustee for the said mortifications, having thus used the trust-estate, and the title thereof vested in them, for the purpose of obtaining a benefit to themselves, are bound to commnnicate that benefit to the trust-estate and the parties interested therein, and are bound to hold and administer the said salmon-fishings as part of the said trust-estate, and to apply the revenues and profits thereof to the benefit of the parties...

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2 cases
  • O'Donnell v Shanahan
    • United Kingdom
    • Chancery Division
    • 7 August 2008
    ...conduct by the fiduciary in his representative capacity, no single strand runs through them. Following consideration of Aberdeen Town Council v Aberdeen University (1877) 2 App Cas 544, described as a “plain case”, Finn continues (at para 570): It was seen in the previous discussion on bene......
  • Privett Spencer John v King Success Ltd
    • Hong Kong
    • District Court (Hong Kong)
    • 8 May 2007
    ...accept the submission of Mr. Au for the Defendant that these cases (and others like Aberdeen Town Council v Aberdeen University et al (1877) 2 App Cas 544 and In re Sherman, decd. et al (1954) Ch 653) can be distinguished on the basis that they involved clear blots on title. Tang Ying Ki, s......
1 books & journal articles
  • English Influences on the Historical Development of Fiduciary Duties in Scottish Law
    • United Kingdom
    • Edinburgh Law Review No. , January 2014
    • 1 January 2014
    ...at 10 per Lord Shand; [1902] AC 197 at 204 per Lord MacNaghten, and at 205 per Lord Shand; Aberdeen Town Council v Aberdeen University (1877) 2 App Cas 544 at 554–555 per Lord O'Hagan (in the Law Reports his apposite citation of Stair 1.6.17 is reported but it is curiously omitted from Rett......

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