Gordon-Cumming v Houldsworth
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 1910 |
| Docket Number | No. 8. |
| Date | 21 July 1910 |
| Court | House of Lords |
Vendor and Purchaser - Contract - Sale of Estate by General Name - Use of Plan - Scottish Law.
Where an estate is sold as shewn upon a plan and there is no dispute as to the validity of the contract, the plan decides what is the extent of the estate sold; and this is so although the particulars given and taken as being particulars of what is comprised in the plan erroneously contained particulars which were not contained in the plan.
Such erroneous misstatements may afford the buyer good ground for a reduction of the contract, but in the absence of any action for this purpose he cannot found on the misrepresentation with the object of obtaining an estate larger than that delineated on the plan.
So held, reversing the decision of the Second Division of the Court of Session.
APPEAL from an interlocutor of the Second Division of the Court of Session, Scotland.F1
This action wac a dispute as to the extent of the land comprised in a shooting estate in Morayshire known by the name of the Dallas estate, which was bought from the appellant, Sir William Gordon Gordon-Cumming, of Altyre and Gordonstown, by the respondent and pursuer, Mr. James Hamilton Houldsworth, of Coltness, Lanark, on a contract of sale which both parties admitted to be a valid and binding contract. The appellant alleged that he sold “the estate of Dallas” according to a certain plan; while the respondent alleged that he bought the whole Dallas estate according to the appellant's registered title deeds, which would give from 1200 to 1500 acres more than was given by the plan. The Lord Ordinary (Lord Mackenzie) gave judgment on February 25, 1909, in favour of the appellant, but the Second Division on June 24, 1909, recalled his decision, ordering the appellant to grant to the respondent a conveyance which was, as stated above, in excess of the shooting estate of Dallas. The further facts and evidence are sufficiently dealt with in the opinion of their Lordships.
March 1, 3, 4. Alexander Ure, L.A., and John G. Spens (both of the Scottish Bar), for the appellant. The question is, was the estate of Dallas purchased as shewn on the plan 46 or as described in the title deeds of the appellant? The respondent's summons concludes for a conveyance to him of “all and whole the lands and barony of Dallas,” setting out in detail as in the title deeds thereof the lands and others included within the barony. The identity of the barony is not the same as the plan 46. The appellant contends that he made no contract to sell to the respondent the lands and barony of Dallas, but that what he did agree to convey was the shooting estate of Dallas, extending to about 15,000 acres, retaining the barony. Plan 46 was the only plan of the estate the purchaser's agent had before him on inspection of the estate. The appellant proposed to sell an estate of 15,000 acres, and the plan 46 shewed the boundaries of such an estate. But the respondent asked for a conveyance of an estate which was between 1200 and 1500 acres more, alleging that when an estate is sold under a general name the name designates the estate as described in the title deeds in the Register of Sasines. The respondent's claim must be limited to two things, an estate of about 15,000 acres, and an estate according to the boundaries set out in plan 46. These boundaries are not the same as the line of the barony of Dallas on the west side, where the estate marches with another estate, namely, Altyre, held by the appellant. Where the barony marches with estates held by others than the appellant, the boundary is well defined and is coincident with the shooting estate and plan 46. There was nothing in the evidence to support the case of the respondent. In fact the respondent's summons gives twelve descriptions of lands which cannot now be identified, and it is impossible from the description in the title deeds to formulate an accurate conveyance of what is claimed by the respondent. In 1698 the barony of Gordonstown was established, and it comprehended subjects lying in Nova Scotia as well as Dallas, so what the respondent is really asking for is a conveyance of the barony of Gordonstown on his purchase of “the estate of Dallas.” As regards the rentals of Auchness and Succoth, which were erroneously included in the particulars, there may be a question for adjustment, but it was not raised in these proceedings, and has no bearing on the question What was the estate sold? The judgment of the Second Division ought to be reversed, as the evidence shews there was a consensus ad idem that the “estate of Dallas” intended to be sold and bought was as delineated on the plan 46.
Scott Dickson, D.F., and Burn Murdoch (both of the Scottish Bar), for the respondent. There is no dispute as to the conclusion of the contract. But the respondent claims lands described in the registered deeds of the estate. When the appellant disentailed the Dallas estate in 1886 he acquired the Dallas estate, and that was the estate which he sold to the respondent. As between parties selling and purchasing an estate the first thing to consider is what is the seller's title; and a buyer is entitled by Scottish law to receive a disposition in terms of the seller's titles to the full extent of the lands held under the registered titles. The effect of plans in a contract of this kind is discussed in North British Railway v. TodF2 and Heriot's Hospital v. GibsonF3, and it was there laid down with great emphasis that a written contract cannot be varied by parol evidence. The appellant contends that he is entitled to alter the written contract of sale by reference to plan 46. But the written communications did not refer to this plan, and by the law of Scotland it was incompetent to modify the contract by reference to the plan. If a plan is to be introduced into the sale of an estate there must be an express statement in writing that that is the intention. Here the plan was no part of the written contract and could not be taken to designate what was sold. The respondent is entitled to a conveyance of Dallas, and the appellant is bound in law to deliver a conveyance of all the land called Dallas belonging to him and described in the Register of Sasines. There is no difficulty in formulating a valid conveyance, as the respondent is content to have the description of the lands in the deed of disentail. [They also cited Inglis v. Buttery & Co.F4]
Alexander Ure, L.A., replied.
The House took time for consideration.
July 21. LORD LOREBURN L.C. My Lords, this is a dispute as to how much land was bought by Mr. Houldsworth on a contract of sale in December, 1907.
With unfeigned respect to the learned judges of the Second Division, I think the Lord Ordinary was right in his conclusion.
Both the parties come before your Lordships saying that they made a valid contract, and differ only as to the boundary of what was sold. Sir William Gordon-Cumming claims that he sold according to a plan. Mr. Houldsworth contends that he bought according to an instrument of disentail of December 31, 1886, which is a disentail of the “lands and barony of Dallas.”
Now I am not in the least satisfied that the “estate of Dallas” is the same thing as “the lands and barony.” On the contrary, there is no title specifically of the “estate,” and the effect of treating it as equivalent to the lands and barony would be to substitute in the contract of sale a different description of the subject for that which the parties used. The proprietor owned not only Dallas, but the contiguous property of Altyre; and in 1887 he cut out an area which he then designed to sell, denominated it the “estate of Dallas,” and had it delineated on a plan, No. 46 of process. I cannot see ground for assuming that a sale by name of the one subject is a sale by name of the other. This, however, does not affect the case from my point of view, for I hold that the sale was, in fact, on the plan. As I have the misfortune to differ from the Second Division, I must state the material facts on which my opinion proceeds.
For the purpose of selling in 1887, a small plan, thirty inches or thereabouts in length, had been prepared. There is no question that it exhibited intelligibly and quite accurately the boundaries and the area. It also contained a clear statement of the acreage, and confessedly states with sufficient precision the dimensions of what Sir William wished to sell. It purports, on the face of it, to be a plan of the estate of Dallas, and in the negotiations throughout the area to be sold was called “the Dallas estate.”
Not succeeding in 1887, Sir William again put this “Dallas estate” on the market in 1907, and Mr. Houldsworth proceeded to negotiate for it. Ultimately, in December, 1907, both parties agree in maintaining that a contract of sale was effected, though they differ as to what was the subject sold.
In my view these negotiations are crucial, and all that passed, either orally or in writing, is admissible in evidence to prove what was in fact the subject of sale; not to alter the contract, but to identify its subject.
These negotiations began in March and were suspended in the summer. At the end of the year they were renewed, and ended with a written offer of an option, and an acceptance thereof in December, 1907. All through, only one subject was the subject of negotiation, namely, the Dallas estate. Accordingly, anything which will identify that estate is equally important, whether it occurred at the commencement or at any other stage of the negotiations.
The material passages in this dealing are shortly as follows: Seller's agent furnishes a statement of the acreage of the Dallas estate as 15,303 acres, describing the kinds of land and the acreage of each kind, which agree with the plan. Buyer's...
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