Church of Scotland Endowment Committee v Provident Association of London Ltd
| Jurisdiction | Scotland |
| Judgment Date | 05 December 1913 |
| Date | 05 December 1913 |
| Docket Number | No. 21. |
| Court | Court of Session |
Lord Skerrington, Lord Dundas, Lord Justice-Clerk, Lord Guthrie.
ContractConstitutionRight in securityGround-annualContract by a party purporting to create a ground-annual in favour of himself.
Held that a contract, entered into by a proprietor of lands as first party and himself as second party, purporting to create a ground-annual in favour of himself was ineffectual, in respect that a man cannot by any deed constitute a debt by himself to himself.
Right in SecurityReal burdenGround-annualConstitutionAssignation of invalid ground-annualDisposition in securityAbsence of express personal obligation.
By a deed in the form of a contract of ground-annual (containing a personal obligation) the owner of land purported to dispone it to himself in consideration of the payment by himself to himself of a ground-annual, which was declared to be a real burden on the land and in security of which he reconveyed the land to himself. By subsequent recorded deed he disponed for value to third parties the ground-annual and security-subjects specified in the prior deed. The later deed contained no personal obligation.
In an action by the disponees under the later deed against the proprietors of the land, who were the singular successors of the original owner, the pursuers, while admitting that no ground-annual was created by the prior deed, maintained (1) that the later deed, though intended to transfer a ground-annual which in fact did not exist, was sufficient by its terms to constitute a ground-annual as a real burden in their favour over the land in question; or otherwise (2) that, by the later deed, they were validly infeft in the land in real security of an annual payment by the granter and his heirs, which, the deed being onerous, he must be held to have warranted, and which was also binding on him in respect that he had impliedly adopted in the later deed the personal obligation in the prior deed.
Held that the pursuers were entitled to succeed on both of the grounds stated.
Observed per Lord Dundas: Ground-annual is not a vox signata; I think it simply means a perpetual rentcharge secured in some effectual fashion as a real burden on land.
On 10th May 1912 the Rev. Henry Cowan, D.D., and others, Trustees of the Endowment Committee of the General Assembly of the Church of Scotland, brought an action against the Provident Association of London, Limited, and others. The summons concluded for declarator that under and in terms of (1) contract of ground-annual between Peter Simpson, S.S.C., Edinburgh, heritable proprietor as therein mentioned, of the one part, and the said Peter Simpson, of the other part, dated 3rd, and recorded in the Division of the General Register of Sasines applicable to the county of Edinburgh 6th, both days of December 1883, and (2) disposition and assignation by the said Peter Simpson in favour of Thomas Graham Murray, W.S., convener; the said Reverend Henry Cowan, vice-convener; and George Baillie Wilson, treasurer; all of the said Committee of the General Assembly of the Church of Scotland, and their respective successors in office, as trustees for behoof of the said Committee, dated 8th, and recorded in the said Division of the General Register of Sasines, 11th, both days of December 1883, or otherwise and alternatively under and in terms of the said disposition and assignation, a ground-annual of 4, 5s. 11d. to be uplifted and taken furth of and from All and Whole that piece of ground on the south side of Gilmore Place, Edinburgh, upon which the self-contained dwelling-house, forming number 55 thereof, is built, with the plot in front thereof and the garden ground behind, being the subjects disponed in the third place in the above-mentioned disposition and assignation, was validly and effectually constituted a real burden on the said subjects, and that the pursuers as trustees foresaid are now in right thereof, or otherwise and alternatively, it Ought and Should be Found and Declared, by decree foresaid, that under and in virtue of the said disposition and assignation the pursuers and their successors in office as trustees for behoof of said Committee are validly and effectually infeft, as from the date of recording the said disposition and assignation, in the said piece of ground, and that in real security for the payment by the said Peter Simpson and his heirs and executors and personal representatives whomsoever to the pursuers and their successors in office as trustees foresaid of the yearly sum of4, 5s. 11d. *
The contract of ground-annual referred to in the summons was in these terms:It is contracted and agreed between Peter Simpson, Solicitor before the Supreme Courts, Edinburgh, heritable proprietor of the areas of ground hereinarter disponed, of the first part, and the said Peter Simpson, of the second part, in manner following, viz., The said Peter Simpson, of the first part, in consideration of the ground-annuals and other prestations hereinafter undertaken by the said Peter Simpson, of the second part, has sold and hereby sells and dispones to and in favour of the said Peter Simpson, of the second part, and his heirs and assignees whomsoever, heritably and irredeemably, in the first place, In the third place, All and Whole that piece of ground on the south side of Gilmore Place upon which the self-contained dwelling-house, forming number 55 thereof, is built, with the plot in front thereof and the garden ground behind, And declaring that these presents are granted and the foresaid pieces of ground are disponed with and under the real and preferable lien and burden of the payment by the said Peter Simpson of the second part and his foresaids to the said Peter Simpson of the first part and his heirs and assignees whomsoever of the yearly ground-annual following, viz., of 4, 5s. 11d. sterling to be uplifted and taken by the said Peter Simpson of the first part and his foresaids furth of and from each of the pieces of ground before disponed in the first, second, third, and fourth places, and whole houses and buildings erected or to be erected thereon, or furth of any part or portion thereof, and readiest rents, maills, and duties of the same; And the said Peter Simpson of the first part grants warrandice; For which causes and on the other part the said Peter Simpson of the second part binds himself and his foresaids to make payment to the said Peter Simpson of the first part and his foresaids of the foresaid several ground-annuals of 4, 5s. 11d. sterling for each of the said pieces of ground first, second, third, and fourth before disponed; And for further security to the said Peter Simpson of the first part and his foresaids
of the payment of the said several ground-annuals, the said Peter Simpson of the second part, hereby assigns, dispones and makes over to and in favour of the said Peter Simpson of the first part and his foresaids not only All and Whole the yearly ground-annuals, viz., of 4, 5s. 11d. but also All and Whole the said pieces of ground and buildings erected or to be erected thereon, and that in real security to the said Peter Simpson of the first part and his foresaids of the...
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