Clementina Bonita Rodger (ap) V. Robert Paton (ap)+brian Docherty+mrs Edith Docherty
| Jurisdiction | Scotland |
| Judge | Lord Hardie |
| Date | 08 June 2004 |
| Docket Number | A/2194 |
| Court | Court of Session |
| Published date | 10 June 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| A/2194/99
| OPINION OF LORD HARDIE in the cause CLEMENTINA BONITA RODGER (AP) Pursuer; against (FIRST) ROBERT PATON, (AP); (SECOND) BRIAN DOCHERTY and (THIRD) MRS EDITH DOCHERTY Defenders: ________________ |
Pursuer: J J Mitchell, Q.C., Artis; Russell Jones & Walker
First Defender: J R Campbell, Q.C., Coll; Aitken Nairn, W.S. (for Hannay Fraser,
Solicitors, Rothesay)
Second & Third Defenders: Dorrian, Q.C., M J M Bell; Macbeth Currie & Co
(for Macpherson, Gibb McGuire, Cook, Solicitors, Glasgow for Second Defenders)
8 June 2004
Introduction
[1]The pursuer seeks declarator that the first defender has failed to implement and fulfil an agreement between them and in particular has failed to execute and deliver to the pursuer a valid Disposition of heritable property which the pursuer alleges was the subject of the agreement (hereinafter referred to as "the subjects"). The pursuer also seeks production and reduction of a pretended Disposition of the subjects granted by the first defender to and in favour of the second and third named defenders. The third conclusion is for a decree ordaining the first defender to implement the agreement between him and the pursuer and in particular to execute and deliver to the pursuer a valid Disposition of the subjects and to execute such other deeds as may be necessary in order to give the pursuer a valid title to the subjects. In the event of the first defender refusing or otherwise failing to implement the agreement the pursuer seeks damages from him. The remaining conclusions are for interdict and expenses. They are not relevant for the purposes of this opinion.
[2]The case called before me on procedure roll on 5 and 6 May 2004 in respect of the first plea-in-law for the first defender and the first and second pleas-in-law for the second and third defenders. The first plea-in-law for the first defender and the second plea-in-law for the second and third defenders were in identical terms as follows:-
"The pursuer's averments being irrelevant et separatim lacking in specification, the action should be dismissed".
The first plea-in-law for the second and third defenders was in the following terms:-
"The action being incompetent should be dismissed."
On the second day of the procedure roll, senior counsel for the pursuer tendered a Minute of Amendment which sought leave to reduce the alternative claim for damages contained in the fourth conclusion by deleting the sum of £46,000 and substituting therefor the sum of £16,000 and by amending the conclusion for interest on the reduced sum. The Minute of Amendment included two consequential amendments to Article 8 of Condescendence and also sought leave to delete a sentence occurring at page 16D-E of the Closed Record in Article 3 of Condescendence which was in the following terms:-
"In the Autumn of 1989 about £1,300 was spent in clearing rubbish from and carrying out essential repairs to the derelict building on the subjects."
Senior counsel for the first defender and counsel for the second and third defenders objected to the deletion of this sentence as a result of which the Minute of Amendment was further amended by restricting it to the reduction of the claim for damages. Thereafter in the absence of any further objection, I allowed the Record to be opened up and amended in terms of the Minute of Amendment as restricted.
Background
[3]Mr Campbell, senior counsel for the first defender sought dismissal of the action in terms of his first plea-in-law. As background, senior counsel explained that the title to the subjects was now in the name of the second and third defenders by virtue of a disposition in their favour by the first defender (6/3 of Process). The pursuer seeks reduction of that Disposition because the pursuer alleges that the first defender bound himself to convey the land to her.
Factual Averments by the Pursuer
[4]In Article 2 of Condescendence, the pursuer avers that in the autumn of 1989 the pursuer and her husband entered into a verbal agreement with the first defender for the rental of the subjects at a rent of about £40 per week. Thereafter the pursuer's husband used a building on the subjects with the knowledge of the first defender. The pursuer further avers that late in 1990 she and her husband entered into an oral agreement with the first defender for the sale of the subjects to them at a price of £36,000 payable at the rate of £200 per month over a period of 15 years although the balance of the price could be paid off by the pursuer at any time. The first defender was not to grant any security over the subjects and the title deeds were to be lodged with either the pursuer's solicitors or the first defender's solicitor. It is averred that on or about 1 December 1990 the pursuer's husband "put the contract to purchase into the form of a written agreement between the pursuer and the first defender". Senior counsel submitted that what was incorporated was not the contract but a contract because the alleged verbal agreement had been between the first defender and the pursuer and her husband whereas the written contract was between the first defender and the pursuer alone. The original document is 6/43 of process. It is not disputed that the document is not probative. It is in the following terms:-
"Mr Robert Paton,
6 Store Lane,
Rothesay.
1/12/90
Re - Shop Premises and Garden Ground of approximately 1 Acre at 14 Westland's (sic) Road, Rothesay
I , Robert Paton of 6 Store Lane, Rothesay, hereby agree to sell to Mrs C B Rodger of Ivybank Villa, Westland's (sic) Road, Rothesay. (sic). the Shop premises and piece of ground at 14 Westland's (sic) Road, Rothesay for the Sum of £36,000,00. THIRTY SIX THOUSAND POUND'S (sic).
The above monie's (sic) are to be paid in monthly installments (sic) of £200. (sic) (fixed) with no allowances for inflation or any other cause whatsover. *1st; payment to commence on the 1/2/91 and to run for 180 months thereafter. I agree that I will have no right of access to the shop or land at any time for any reason, and also I will have no say whatsoever as to what may or may not be done with the land or shop.
In the event of more than three consecutive monthly payments being outstanding I shall have the righr (sic) through the Court's (sic) to sell the Property and land for the best price obtainable with a minimum of three months national advertising and to take the best offer thereof, and any surplus monies thereof will be returned to Mrs Rodger after the deduction of my REASONABLE expenses and dispersements.
Mrs Rodger may settle up the outstanding monies at any time after 1995 without penalty.
I state categorically and unreservedly that the SHOP and Land are mine to sell and that they are free from any debt or lien or any other type of legal hold that may affect the clean title which I hold. I also state that the title is completely clear in my favour as at the time of this agreement and that there is no possible outstanding retrospective actions that could be enforced.
If for any reason whatsoever I cannot pass on clean title to Mrs Rodger on payment of the monies or if for any reason whatsoever Mrs rodger (sic) is unable to get clean title, then I agree to be held liable for damages and disbursements to mrs (sic) Rodger the amount of which will be settled and agree (sic) by an independent arbitrator whose decision shall be binding and FINAL to both parties."
The document bears to be signed by the pursuer and the first defender but is not attested.
[5]The pursuer avers that following the alleged agreement she took possession of the subjects and has enjoyed their use. She integrated the subjects into the garden of her house, Ivybank Villa. She details works which she carried out between December 1990 and 1998. These included landscaping, the erection of a Pergola, the compliance with a court order in 1995 by enclosing the subjects and the grounds of Ivybank Villa with a chain link and steel pole fence, the renovation of the former shop premises, the erection of a summer house and the erection of a new timber fence around the subjects in 1998. There is also the averment at page 16D-E of the Closed Record already specified by me relating to work carried out in the autumn of 1989. The pursuer avers payment to the first defender at the rate of £200 per month in terms of the contract from December 1990 until 1993. It is averred that a second deed was signed. The original of that deed is not produced but a copy comprises 6/2 of process. The pursuer does not seek to prove the tenor of this document, which is in the following terms:-
"BY HAND Ivybank Villa
Westlands Road,
Rothesay
PA20 0HQ
5/3/93
Re - Shop Premises and Garden Ground at 14 Westlands Road, Rothesay; Final Settlement of Agreement Dated 1/12/1990
I, Robert Paton of 6 Store Lane, Rothesay, due to numerous difficulties in my supplying CLEAN TITLE to the above Land, and with reference to all the correspondence on this matter hereby accept the payment of £10,000 (Ten Thousand Pounds Cash) as being FULL and FINAL SETTLEMENT of the above dated AGREEMENT.
As and when I am able to pass on Clean Title to Mrs Rodger I shall do so at the earliest possible time.
In light of this agreement Mrs Rodger shall have no re-dress (sic) if my Inhibitor presses for the Sale of Land.
Given all the difficulties I hereby accept this reduced payment."
The document bears to be signed by the pursuer and the first defender and to be counter-signed by witnesses who are not designed.
Submissions on behalf of the First Defender
[6]The first submission by Mr Campbell on behalf of the first defender was that any agreement constituted by the documents 6/43 and 6/2 of process is unenforceable as an agreement to sell heritable property principally because the documents do not sufficiently identify the heritable property involved and it is not possible to frame a decree of implement by reference to...
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