Anderson v Lambie (Practice Note)
| Jurisdiction | Scotland |
| Judgment Date | 16 December 1952 |
| Date | 16 December 1952 |
| Docket Number | No. 12. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Mackintosh.
ContractErrorHeritable PropertySale of heritageRecorded disposition containing inaccurate description of subjects of saleAdditional subjects conveyed in errorEssential errorError in expressionError neither admitted by purchaser nor patent on face of deedReductionWhether competent.
The proprietor of an estate which consisted mainly of a farm sold the farm to purchasers; and thereafter a disposition was prepared and recorded, which, in consequence of an errorfor which the seller's solicitors were responsiblein the description of the subjects of sale, had the effect of conveying to the purchasers the whole estate instead of the farm alone. The purchasers did not agree that there had been any error in framing the description of the subjects, but, in an action for reduction of the disposition, in which a proof before answer was allowed, the Lord Ordinary found (1) that the missives exchanged by the parties' solicitors showed a common intention to effect a sale of the farm alone, and (2) that both parties, through their solicitors, mistakenly supposed that the disposition was co-extensive with the missives as regarded the subjects of sale; and he granted decree of reduction, on the basis that a correct disposition would, in accordance with an offer made by the seller on record, be granted at the seller's expense.
Held (rev. judgment of Lord Mackintosh) that, while the Court would normally be prepared to intervene where parties were agreed that a formal conveyance had been framed incorrectly or where the deed revealed on examination an obvious error calculi, it was not competent, in a case where the error was neither admitted nor obvious on the face of the deed, to reduce a recorded title to heritable property because of a discrepancy between the recorded title and the missives on which that title was based; and action dismissed.
Waddell v. WaddellUNK, (1863) 1 Macph. 635, andKrupp v. Menzies, 1907 S. C. 903,distinguished.
Authorities commented on.
James Alastair Anderson brought an action against Samuel Milligan Lambie and Mrs Mary Ferguson Lambie in which he concluded for "production and reduction of a pretended disposition by the pursuer in favour of the defenders dated 22nd and 26th January and recorded in the General Register of Sasines applicable to the County of Lanark on 2nd February 1949."
The following summary of the pursuer's averments is taken from the opinion delivered by Lord Mackintosh on 10th October 1951:"This is an action for reduction of a disposition of certain lands in the County of Lanark. The case arises in somewhat exceptional and peculiar circumstances. The pursuer, before the sale which ultimately led to the granting of this disposition, was proprietor of two adjoining parcels of land in that county, one of them being a farm called the farm of Blairmuckhill and the other being an adjoining portion of the estate of Blairmuckhill, which was used as colliery lands. Now, according to the pursuer's averments, what happened was thisa contract of sale was entered into and carried out by written missives which are produced in the process and are probative documents which evidence that the pursuer sold and the defenders bought the farm of Blairmuckhill, it being described in the missives as the lands occupied by the parties who were then the tenants of that farm. The pursuer's case is that, so far as the intention of the contract is concerned, there is not and never has been any dispute between the parties. The intention of the pursuer was to sell and the defenders to buy the farm of Blairmuckhill and nothing else. The pursuer's averments, however, then go on to relate that following upon this contract of sale certain title deeds were sent by the pursuer's agents to the defenders' agents in order to enable the latter to draft the necessary disposition following upon the sale. It is averred, and I think sufficiently averred, that the defenders' agents did not understand and were never told by the pursuer's agents that the titles which were sent to them were the titles of the two parcels of land belonging to the pursuer and not only those of the farm. In result, as the averments state, what happened was that in the draft disposition which was prepared by the defenders' agents they took into the dispositive clause a description of land which was contained in a prior title which had been sent to them, namely, a disposition of the year 1902. That description in itself was not in such terms as to enable without perusal of the earlier titles the exact area of land which was being disponed to be identified, and, according to the averments made, the defenders' agents understood that in putting this description of land into the draft disposition they were putting in a description of land which included the farm and nothing but the farm. It is further averred that when this draft disposition came to the pursuer's agents to be revised, the pursuer's agents owing to error on their part did not observe that the lands bearing to be disponed under the draft disposition were the pursuer's two parcels of land and not only his farm. In consequence of this the draft disposition was revised by the pursuer's agents without their correcting it so as to limit the land bearing to be disponed by it to the farm alone. In that shape the draft was duly extended, and the disposition containing the same description of the lands as in the draft was in due course signed by the pursuer and recorded in the Register of Sasines. The pursuer now seeks to have that disposition reduced on the ground that it simply did not give expression to the contract which, according to the pursuer's averments, was admittedly, and to the knowledge of both parties, the contract which had been made between the parties. In other words his case is, and I think it has been sufficiently averred to be, that both parties, the pursuer and the male defender, knew that the contract which they had made by means of the missives was a contract for the purchase by that defender of the farm of Blairmuckhill and nothing but the farm of Blairmuckhill; whereas the disposition erroneously gave expression to that contract by including in its dispositive clause not only the lands which form the farm of Blairmuckhill but also the pursuer's adjoining parcel of land, being the colliery land to which I have before referred."
The defenders averred, inter alia:"The defenders and their agents at all material times understood that they were purchasing the whole area of ground described in the disposition sought to be reduced."
The pursuer pleaded:"(1) The said disposition dated January 1949, having conveyed to the defenders, through essential error on the part of both the pursuer's agents and the defenders' agents, more than the land agreed to be conveyed by said missives, should be reduced, and decree should be granted as concluded for. (2) The pursuer being willing in the circumstances to execute a disposition of the farm of Blairmuckhill agreed to be sold by him to the defenders, decree of reduction should be granted. (3) The defences, being irrelevant, should be repelled."
The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant and insufficient in law to support the conclusions of the summons et separatim being lacking in specification, the action should be dismissed." "(4) The said disposition...
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