Glasgow Feuing and Building Company Ltd v Watson's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 11 March 1887 |
| Date | 11 March 1887 |
| Docket Number | No. 118. |
| Court | Court of Session |
Lord Fraser. I., Lord Young, Lord Craighill, Lord Rutherfurd Clark, Lord Justice-Clerk.
Error—Contract—Records—Plan—Partial reduction of a feu-contract.—
By a feu-contract the granter became bound to form certain roads on the ground disponed, in so far as delineated and tinged brown on a plan appended to the contract. On the plan appended a number of other roads were by mistake also tinged brown. The feu-contract, with the erroneously coloured plan, was duly recorded. None of the parties to the contract observed the blunder at the time of signing, and it was not discovered until some years afterwards, when the ground had been sold by the original vassals to a building company. The company then raised an action against the superior for payment of the cost of forming the roads erroneously tinged brown on the plan, and the superior brought an action against the company for reduction of the feu-contract, in so far as it imported an obligation on him to form these roads. Held (rev. judgment of Lord Fraser) that as the original feu-contract was not intended to impose an obligation to make the roads in question on the superior, and as the company in contracting with the vassals did not stipulate for and did not understand that they were getting such an obligation, the mere fact that such an obligation erroneously appeared in the feu-contract and in the record did not entitle the company, though bona fide purchasers for value, to object to the Court rectifying the feu-contract and the records.
Observed (per Lord Young) that one purchasing on the faith of the records is not entitled to rely on the validity or subsistence of such incidental obligations as an obligation to make roads although appearing on the records undischarged.
These were two actions, which were conjoined. The first, which was raised on 24th February 1885, was brought by the Glasgow Feuing and Building Company, Limited, against the trustees of the late William Watson, of Overlee, near Glasgow, and concluded for payment of £334, 10s. 7d., as the expense the company had been put to in making certain roads on part of the estate of Overlee feued by Watson to their authors, which roads Watson had, the company alleged, come under an obligation in the feu-contract to make.
The second action, which was raised on 12th June 1885, was raised by Watson's trustees against the Feuing Company, and also against certain feuars from them, Messrs Whyte, Binnie, Neilson, and Livingstone, after mentioned, being also called for their interest. It concluded for reduction of the feu-contract, in so far as it imported an obligation on Watson to form the roads in question, for declarator that the feu-contract was and had from the beginning been null and void, in so far as it imported such an obligation on Watson, and that he never had been and the pursuers were not bound under the feu-contract to form, or pay the expense of forming, the said roads; and for warrant to the pursuers to record the decrees to be pronounced thereon in the Register of Sasines for publication, or for publication and preservation.
The following narrative from the Lord Ordinary's opinion explains the circumstances out of which the actions arose:—‘William Watson, now deceased, who is represented by his trustees, was proprietor of the lands of Overlee, near Glasgow, which he agreed to feu to Whyte & Binnie, merchants in Glasgow. Missive letters of feu were entered into between the parties, dated 24th January 1877. The first letter was written by Watson, who thereby offered the lands in feu to Whyte & Binnie in two lots, the first being a piece of ground extending to 3 acres 2 roods and 28 poles, as delineated on the feuing plan of the lands, at the annual feu-duty of £16 sterling per acre. In reference to this feu of 3 acres, Watson came under the following obligation:—“I bind myself to make the roads free of charge to you, except the sewers, drains, curbstones, and gutters, which you shall pay me for. I bind myself to make the roads firmly bottomed, and well set and covered with ashes.” No dispute has arisen in reference to this obligation, which Watson duly implemented.
‘But Watson also by the same letter offered to feu the remainder of the ground of Overlee, extending to 14 acres 1 rood and 30 poles, at a feu-duty of £20 sterling per acre. In reference to this second lot the following was the stipulation:—“You (that is, Whyte & Binnie) shall be bound to put in roads at your own expense, of the same description as I bind myself to do to you, as above mentioned.” A dispute has arisen with reference to the implementing of the stipulation as to the roads,— there being, however, no dispute whatever as to this, that Whyte & Binnie were to make the roads upon this 14 acre lot.
‘The offer of Watson was duly accepted on the same date by Whyte & Binnie. The bargain so completed was put into formal shape by the execution of a feu-contract entered into between Watson on the one hand, and Whyte & Binnie, and two other persons of the name of William Neilson and Hugh Livingstone, on the other hand, both of whom were taken into the feuing speculation by Whyte & Binnie. This feu-contract conveyed over to these four persons, first, the 3 acres 2 roods and 28 poles which are said to be “delineated and tinged red on a plan thereof indorsed hereon, and subscribed as relative hereto,” and secondly, the remainder of Overlee, containing 14 acres 1 rood and 305/10 poles, which also is described as “delineated and tinged blue on the foresaid plan, indorsed hereon and subscribed as relative hereto.” All this is distinct enough, and a reference to the plan No. 11 of process shews the two lots of ground very plainly. This plan, No. 11 of process, was prepared by William Kirkwood, surveyor at Pollockshaws, and shews roads only at one point, viz., upon the 3 acre lot, in the shape of the letter T. If the reference in the feu-contract had been to the plan No. 11, there never would have been any dispute between the parties as to what were the roads which Watson, the superior, was to make, and what were the roads which the feuars from him were to take upon their own shoulders. But the reference in the feu-contract is not to No. 11, but to the plan appended to that contract, which was intended to be simply a copy of No. 11. The feu-contract contains this special stipulation in regard to the formation of the roads, “declaring that the first party (Watson) shall, in so far as not already done, form the roads (including the laying of the sewer-pipes, drain-pipes, cesspools, gutters, and kerbstones, but which pipes, gutters, and kerbstones are to be furnished by the second parties) intersecting the pieces of ground above disponed, in so far as delineated and tinged brown on said plan.” Now, on referring to the plan appended to the contract, of which No. 182 is a copy, it will be seen that the roads there laid down are carried, not merely through the 3 acre lot, but also through the 14 acre lot, and they are all tinged brown. Thus, while the original missives only bound Watson to make the roads delineated on the plan No. 11 in the 3 acre lot alone, he is by the contract, with reference to the plan appended, under obligation to make the roads throughout the whole 17 acres.
‘This was a clear error; and Watson's trustees now seek to set aside the feu-contract, “in so far as the same declares that the said William Watson shall form, or imports an obligation on him or his heirs or succeessors to form, any roads (including the laying of the pipes, sewer-pipes, drain-pipes, cesspools, gutters, and kerbstones) on the said portion of ground containing 14 acres 1 rood 30 poles and 5/10 parts of a pole or thereby imperial measure, disponed in the second place by the said feu-contract.” And there is further a conclusion for declarator, that no such obligation was incumbent upon Watson or his representatives.
‘By an agreement between Watson and Whyte & Binnie, instead of making the roads upon the 3 acre lot in the form of the letter T,—that is to say, a road running from the East Kilbride road direct up through the 3 acre lot to a certain distance and then having two cross-roads on each side, it was agreed that Watson should not make cross-roads, but should carry the road direct through the whole of the 3 acres and 20 yards beyond them, into the 14 acre ground. Nothing turns upon this alteration of the original lie of the roads; the new road was nearly of the same length as the T-shaped roads laid down on the plan No. 11. The new road was substituted for the one originally intended.
‘The mode in which the error was fallen into is very clearly traced. Whyte & Binnie, and their two associates Neilson and Livingstone, had entered into the feuing speculation in the year 1877, when there was a good deal of building speculation going on in Glasgow; and the first thing of course that they set about doing was to obtain a feuing plan exhibiting the laying out of the ground for feuing. This was prepared for them by Messrs Kyle, Dennison, & Frew, surveyors, Glasgow; and No. 185 is a lithographed copy of it. These gentlemen were not the persons who made the survey on behalf of Watson; but their services were taken by Watson in regard to the description of the subjects to be inserted in the feu-contract, and in regard to making a copy of the plan to be appended to that deed. Messrs J. & J. Boyd, the agents for Watson, wrote to these surveyors on 22d October 1877,—“We send the draft feu-contract herewith, and will thank you to check the descriptions and contents of ground. We shall afterwards instruct you to indorse the plan on the extended deed. Of course you will charge our client with such a proportion of the expense of the survey as you think fair.” It appears from the diaries kept by Kyle, Dennison, & Frew that they had got verbal instructions—and, as...
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Anderson v Lambie (Practice Note)
...two cases which I propose to examine are Krupp v. Menzies 1907 S.C.903 and Glasgow Feuing and Building Company Limited v. Watson's Trustees 14 R. 610. 33 I wish to make it clear at the outset that I regard cases of this kind as essentially different from cases where the question at issue is......