Baird v Drumpellier & Mount Vernon Estates Ltd
| Jurisdiction | Scotland |
| Judgment Date | 19 November 1999 |
| Date | 19 November 1999 |
| Docket Number | No 14 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Hamilton
PracticeWritRectificationDisposition containing unqualified warrandice clausePrior non-formal correspondence between parties' agents regarding uncertainty over title to land disponedConventional express provision that good and marketable title to be provided by sellers deleted and alternative clause substitutedNo express exclusion of warrandice in missivesWhether prior correspondence reflected agreement to relieve sellers of obligation of implied warrandiceWhether averments anent rectification relevantLaw Reform (Miscellaneous Provisions) (Scotland) Act 1985 (cap 73), sec 8(1) and (2)1
The pursuer and his agents made inquiries which suggested that the defenders might be the owners of an area of ground which the pursuer was interested in purchasing. Missives of sale were concluded and a disposition containing an unqualified warrandice clause was executed. Application to register the subjects in the Land Register was refused by the Keeper of the Land Register on the basis that there were competing titles. The pursuer sought damages from the defenders for breach of warrandice and in response, the defenders counterclaimed for rectification of the disposition by the substitution of the words and we grant simple warrandice only for the words and we grant warrandice. At debate the pursuer sought dismissal of the counterclaim as irrelevant. The defenders argued that the parties had agreed that the defenders were not warranting that they owned the area of ground and as evidence of that fact they relied on prior non-formal correspondence between the parties' agents regarding whether a title could be produced to confirm the defenders' ownership, in the course of which the defenders' agents stated that while the defenders owned property in the area, it would be virtually impossible to pinpoint exactly the defenders' lands. As a result the pursuer's agents obtained from the Keeper a pre-registration report which was understood by them to confirm their belief that the defenders owned the area of ground. The defenders also relied on the fact that in the course of exchanging missives, the pursuers had accepted the defenders' deletion of a condition requiring exhibition of clear Property Register searches which would not disclose anything adverse to the defenders' right to grant a valid marketable title.
Held (1) that the non-formal correspondence revealed no more than a knowledge that the defenders' title neither specifically included nor excluded the area of ground and a belief, which may have also been held by the defenders, that the defenders' title embraced the area of ground (p 108FG); (2) that such knowledge and belief went no way towards an agreement or even a common understanding that the defenders would be relieved of the obligation, otherwise incumbent on them, of warranty of good title (p 108GH); and (3) that it was illegitimate to refer to deleted terms for the purposes of interpretation of a contract and, in any event, the terms substituted for the deleted condition were not incompatible with the implication by law of a term that the defenders warranted their ownership (p 109CD); and counterclaim dismissed.
Inglis v Buttery & Co (1878) 5 R (HL) 87applied.
John Ian Baird brought a commercial action in the Court of Session against Drumpellier & Mount Vernon Estates Limited concluding for damages for breach
of warrandice. The defenders counterclaimed seeking rectification of the disposition between the parties in terms of sec 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985The relevant averments of parties appear sufficiently from the opinion of the Lord Ordinary (Hamilton).
The cause called before the Lord Ordinary for debate.
Cases referred to:
Aberdeen Rubber Ltd v Knowles & Sons (Fruiterers) LtdSC 1994 SC 440
Anderson v LambieSC 1954 SC (HL) 43
Carter v LornieUNK (1890) 18 R 353
George Thompson Services Ltd v Moore 1993 SLT 634
Hall v McWilliam 1993 GWD 231457
Inglis v Buttery & Co (1878) 5 R (HL) 87
McClymont v McCubbin 1995 SLT 1248
Stewart v ClarkUNK (1871) 9 M 616
Taylor v John Lewis LtdENR 1927 SC 891
Turner v Macmillan-Douglas 1989 SLT 293
Textbooks referred to:
Burns, Conveyancing Practice (4th ed), pp 192193
Gloag, Contract (2nd ed), pp 376377
Gretton and Reid, Conveyancing, pp 52, 9192 and 9496
McDonald, Conveyancing Manual (3rd ed), pp 253255; (6th ed), pp 380382
Stair Memorial Encyclopaedia, vol 18, paras 701703 and 708
At advising, on 19 November 1999, the commercial judge, inter alia, dismissed the counterclaim.
LORD HAMILTON'SOpinionIn or about June 1996 the pursuer became interested in acquiring for development purposes an area of ground in the vicinity of Carrick Drive, Mount Vernon, Glasgow. Enquiries made by him and on his behalf suggested that the owners might be the defenders, who held title to certain land at Mount Vernon. Ultimately missives of sale were entered into between the defenders and the pursuer. The purchase price was 10,000. In furtherance of those missives the defenders on 8 April 1997 executed a disposition in favour of the pursuer of the relative area of ground. On 23 April 1997 in exchange for the purchase price they delivered that disposition to the pursuer. It contained a warrandice clause in the terms and we grant warrandice.
It has subsequently emerged that the defenders did not in fact own the particular area of ground bearing to be disponed by the disposition. The Keeper of the Land Register has rejected the pursuer's application for a land certificate to cover the subjects comprised in that disposition, his investigations having revealed competing titles. In this action the pursuer seeks damages from the defenders for what, though not so expressed, is in effect breach of warrandice.
The principal response by the defenders is in the form of a counterclaim by which they seek...
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Renyana-stahl Anstalt V. Alasdair Macgregor And Another
...disposition was intended to give effect (George Thompson Services Ltd v Moore 1993 SLT 634; Baird v Drumpellier & Mount Vernon Estates Ltd 2000 SC 103). In all these circumstances the respondents had averred nothing to displace the inference that the disposition was, at its date, intended t......
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John Ian Baird V. Drumpellier And Mount Vernon Estates Limited
...circumstances of this case are described in the opinion which, following an earlier debate, I issued on 19 November 1999 (now reported at 2000 S.C. 103). After dismissal of the counterclaim the defenders tendered a Minute of Amendment by which they sought to introduce an additional conclusi......
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