Alan Jones+mrs. Brenda Margaret Jones V. Andrew Stuart Wood+mrs. Margaret Wood+john Derek Thomson Bogie
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lord Macfadyen,Lord Clarke |
| Court | High Court of Justiciary |
| Date | 18 March 2005 |
| Docket Number | XA154/03 |
| Published date | 18 March 2005 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Marnoch Lord Macfadyen Lord Clarke
| [2005CSIH31] XA154/03 OPINION OF LORD MARNOCH in APPEAL in the cause ALAN JONES and MRS BRENDA MAUREEN JONES Pursuers and Respondents; against ANDREW STUART WOOD and MRS MARGARET WOOD Defenders and Respondents; and JOHN DEREK THOMSON BOGIE Minuter and Appellant; _______ |
Act: Tyre, Q.C.; Thompsons (for John Henderson & Sons, Dumfries) (Pursuers and Respondents)
Alt: Upton; Russel & Aitken (for Whitelaw, Edgar & Baldwin, Dumfries) (Minuter and Appellant)
18 March 2005
[1]For the reasons given by the sheriff and Lord Macfadyen I agree with your Lordships that this appeal must be refused and that matters should be disposed of in the manner indicated by Lord Macfadyen towards the end of his Opinion.
[2]For my own part, I wish only to emphasise that the present is a case where he who seeks to resist rectification of his neighbour's title, namely the Minuter, was not even aware that his own title ostensibly included the area of ground now in dispute. In that situation I am clear that there can be no possibility of his having "relied" on the terms of the deed sought to be rectified within the meaning of section 9(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. In other circumstances, however, the position might not be so clear and I wish to reserve my opinion as to whether, apart from actual or imputed knowledge of the detailed terms of the defective document or title sheet, there could be other situations in which "reliance" within the meaning of that sub-section might be made out.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord Marnoch Lord Macfadyen Lord Clarke | [2005CSIH31] XA154/03 |
|
| OPINION OF LORD MACFADYEN in APPEAL in the cause ALAN JONES and MRS BRENDA MAUREEN JONES, Pursuers and Respondents; against ANDREW STUART WOOD and MRS MARGARET WOOD, Defenders and Respondents; and JOHN DEREK THOMSON BOGIE, Minuter and Appellant. |
Act: Tyre, Q.C.; Thompsons (for John Henderson & Sons, Dumfries) (Pursuers and Respondents)
Alt: Upton; Russel & Aitken (for Whitelaw, Edgar & Baldwin, Dumfries) (Minuter and Appellant)
18 March 2005
Introduction
[3]The pursuers purchased subjects at East Skelston, Dunscore, Dumfries, from the defenders with entry at 16 December 1997. The plan annexed to the disposition by the defenders in favour of the pursuers was inaccurate, in that it excluded from the subjects conveyed part of the subjects which the defenders and the pursuers had agreed should be sold to the pursuers. In this action the pursuers seek rectification of the disposition in their favour by the substitution, for the inaccurate plan, of a plan which accurately delineates the boundaries of the subjects which they had agreed to purchase. They also seek declarator that they are, and have been since the date of entry, in possession of the subjects delineated in the proposed substitute plan. Thirdly, they seek rectification of the corresponding title sheet in the Land Register of Scotland (DMF 1659) so as to include the ground delineated in the substitute plan.
[4]The defenders initially opposed the pursuers' claims, but withdrew their opposition in April 2003.
[5]Shortly after the sale by the defenders to the pursuers, the defenders sold an adjoining area of land to a Mr and Mrs Kinnaird. In the disposition in their favour the land sold to them was described by reference to a plan which was the same as the one annexed to the disposition in the pursuers' favour. The same error as to the boundary between the two properties thus also entered the title of the land sold to Mr and Mrs Kinnaird. For convenience, the land which ought to have been included in the pursuers' title but was shown in the disposition plans as excluded from it and subsequently included in the land sold to Mr and Mrs Kinnaird will be referred to in this Opinion as "the disputed area". Mr and Mrs Kinnaird sold the land which they had purchased from the defenders (including the disputed area) to the minuter in 1998. The minuter entered the rectification process in order to resist the craves for rectification. After sundry procedure, the action proceeded to proof before answer.
[6]In his pleadings and at the proof the minuter sought to rely on section 9 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1985 ("the Act"). The sheriff held that he was not entitled to do so. Before this court the minuter's submission was that the sheriff had fallen into error in his construction of section 9, and that he ought to have held that the minuter was a person entitled, in reliance on section 9, to resist rectification of the disposition and the title sheet to the effect sought by the pursuers. The minuter accepted that the disposition should be rectified in the way sought by the pursuers, but argued that the rectification should be with effect from a date no earlier than 24 October 1998 (his date of entry) or alternatively no earlier than 27 January 1998 (Mr and Mrs Kinnaird's date of entry), so as to protect his interests by preserving the priority of his title to the disputed area over that of the pursuers. He did not dispute the pursuers' entitlement to decree of declarator in terms of the second crave. He did, however, oppose outright the third crave, for rectification of the title sheet.
[7]Having heard counsel for the pursuers and counsel for the minuter, I am satisfied that the sheriff analysed section 9 correctly, and applied its provisions correctly to the circumstances of this case as he found them. I do not consider that the sheriff's decision and reasoning are open to criticism in any material respect. It is only because, as counsel pointed out to us, there is very little reported authority on the proper interpretation of section 9 of the Act, that I think it appropriate to set out in full my reasons for proposing to your Lordships that we should refuse the appeal and adhere to the sheriff's interlocutor of 27 October 2003
The legislation
[8]The remedy of rectification of defectively expressed documents was introduced by section 8 of the Act. The provisions of section 8 which are material for the purposes of the present case are in the following terms:
| "(1) | Subject to section 9 of this Act, where a court is satisfied, on an application made to it, that ― | ||
| (a) | a document intended to express or give effect to an agreement fails to express accurately the common intention of the parties to the agreement at the date when it was made; ... | ||
| it may order the document to be rectified in any manner that it may specify in order to give effect to that intention. | |||
| ... | |||
| (4) | Subject to section 9(4) of this Act, a document ordered to be rectified under this section shall have effect as if it had always been so rectified." |
[9]Section 9, to which section 8(1) is made subject, provides for the protection in certain circumstances of the interests of third parties whose interests would be adversely affected if rectification were granted. The provisions of section 9 which are material for the purposes of the present case are in the following terms:
| "(1) | The court shall order a document to be rectified under section 8 of this Act only where it is satisfied ― | ||
| (a) | that the interests of a person to whom this section applies would not be adversely affected to a material extent by the rectification; ... | ||
| (2) | Subject to subsection (3) below, this section applies to a person (other than a party to the agreement ...) who has acted or refrained from acting in reliance on the terms of the document or on the title sheet of an interest in land registered in the Land Register of Scotland being an interest to which the document relates, with the result that his position has been affected to a material extent. | ||
| (3) | This section does not apply to a person ― | ||
| (a) | who, at the time when he acted or refrained from acting as mentioned in subsection (2) above, knew, or ought in the circumstances known to him at that time to have been aware, that the document or (as the case may be) the title sheet failed accurately to express the common intention of the parties to the agreement ...; or | ||
| (b) | whose reliance on the terms of the document or on the title sheet was otherwise unreasonable. | ||
| (4) | Notwithstanding subsection (4) of section 8 of this Act and without prejudice to subsection (5) below, the court may, for the purpose of protecting the interests of a person to whom this section applies, order that the rectification of a document shall have effect as at such date as it may specify, being a date later than that as at which it would have effect by virtue of the said subsection (4)." |
The issues
[10]Before the sheriff there was some common ground. It was not disputed that the pursuers had satisfied the requirements of section 8(1) and were therefore entitled to rectification both of the disposition in their favour and of the relative title sheet, unless the minuter was able to invoke the protection of section 9. It was also not disputed that the pursuers were in any event entitled to declarator in terms of the second crave. The issues which were addressed were (1) whether in terms of section 9(2) the minuter was a person to whom section 9 applied; (2) if so, whether the minuter was entitled to resist rectification in terms of section 9(1)(a); (3) whether the minuter was excluded from the protection of section 9(1)(a) on the ground that he was or ought to have been aware at the time of relying on the terms of the document that it did not accurately express the common intention of the parties to it (section 9(3)(a)); and (4) whether his reliance on the document was otherwise unreasonable (section 9(3)(b)).
[11]The sheriff held that in the circumstances the minuter did not qualify in terms of section 9(2) for protection of his interests under section 9. That was sufficient for the...
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