George Hill Against Mark Miller Liddell Hill And Others
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2016] CSOH 10 |
| Court | Court of Session |
| Published date | 15 January 2016 |
| Year | 2016 |
| Date | 15 January 2016 |
| Docket Number | A320/13 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 10
A320/13
OPINION OF LORD JONES
In the cause
GEORGE HILL
Pursuer;
against
MARK MILLER LIDDELL HILL and OTHERS
Defenders:
Pursuer: Wallace; Allan McDougall
First Defender: O’Rourke; Drummond Miller LLP
15 January 2016
Introduction
[1] This action arises out of a dispute about the ownership of a house in Foxbar, Paisley (“the house”). It was bought by the pursuer and his late wife (“Mrs Hill”) in 1989, “In consideration of the sum of £11,812.50 paid to us by George Hill and Agnes Hill”. Title was taken in the name of the pursuer and Mrs Hill equally between them and to the survivor of them, and was registered in the Land Register of Scotland on 13 July 1989. Mrs Hill died on 7 July 1991, and confirmation to her estate was obtained in the name of her executors nominate, the first and second defenders. The first defender is the son of the pursuer and Mrs Hill.
The pursuer’s case on record
[2] It is averred on behalf of the pursuer that, on 2 July 1991, Mrs Hill executed a codicil to her will, dated 22 June 1991, in which she purported to revoke the survivorship destination in favour of the pursuer. A one‑half pro indiviso share of the house was included in the inventory of Mrs Hill’s estate for confirmation. Following confirmation, the first and second defenders executed a formal nomination of entitlement to a one‑half pro indiviso share of the house in favour of the first defender as an individual. On 4 March 1992, the first defender registered the nomination in the Land Register.
[3] It is contended for the pursuer on record that Mrs Hill did not have the power to evacuate the survivorship destination in favour of the pursuer. On the face of the deeds presented to the Commissariot of North Strathclyde at Paisley, the first and second defenders ought not to have been confirmed to the house. Against that background, the pursuer seeks:
1. Declarator that, on 7 July 1991, he “acquired a real right to the whole title” of the house, by operation of the survivorship destination in his favour;
2. Declarator that the first defender is not and never has been in possession of the house;
3. Declarator that, as from 4 March 1992, the proprietorship section of the Land Register title to the house was inaccurate “in respect of the inclusion of the first defender as a half pro indiviso proprietor”;
4. Production and reduction of the “pretended confirmation”;
5. Production and reduction of the nomination of the first defender to a one‑half pro indiviso share of the house; and
6. An order ordaining the Keeper of the Registers of Scotland ”to rectify the inaccuracies in the Land Register for the County of Ayr” in respect of the house.
[4] The pursuer’s first plea in law is to the effect that the first defender’s averments in answer are irrelevant and that decree should be pronounced de plano. It is necessary, therefore, to consider the terms of the first defender’s pleadings.
The first defender’s case on record
[5] The first defender avers, and the pursuer admits, that, by June 1991, Mrs Hill and the pursuer had separated and that their marriage had irretrievably broken down. He avers that Mrs Hill no longer wished the pursuer to inherit her one‑half pro indiviso share of the house and, therefore, she willed her one-half share of the house to the first defender. The first defender’s pleadings continue in the following terms:
“Esto Mrs Hill did not have power to evacuate the survivorship destination (which is denied) the pursuer’s action for reduction comes many years too late. The pursuer is personally barred from now insisting upon the remedy of reduction. The defender has in any event acted to his cost in the intervening years in respect of the (house). He has in the knowledge of the pursuer paid bills, including repairs and Council tax. The pursuer has accordingly acquiesced in the defender’s ownership. In the intervening period of more than 20 years the pursuer has neither said nor done anything to challenge the first defender’s title. Further, esto the pursuer had any right to the transmission into his own name of the deceased’s one-half pro indiviso share of the (house) (which is denied), that right has now prescribed.”
The first defender refers to and quotes the terms of section 8 of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).
[6] It is also contended on behalf of the first defender that, if the pursuer’s right under the survivorship clause was imprescriptible as the pursuer avers:
“that right was rendered extinct by operation of ten year positive prescription in favour of the first defender.”
The first defender refers to and quotes the terms of section 1 of the 1973 Act which, so far as is relevant to this case, provides that, if land has been possessed by any person:
“for a continuous period of ten years openly, peaceably and without any judicial interruption”
and the possession was founded on, and followed registration of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in that land:
“then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge.”
[7] In furtherance of the defender’s case in reliance on section 1 of the 1973 Act, it is averred that he has had “qualifying possession” of the house for more than the relevant period of ten years provided for within section 1(1) of the 1973 Act. It is averred that such possession followed the registration of a deed sufficient in its terms to constitute a real right over the house in his favour. About 18 months prior to the death of Mrs Hill, the pursuer left the house and went to reside on the Isle of Tiree, leaving Mrs Hill, the first defender, and his brother to reside in the house without any financial assistance. Mrs Hill did not work, because of ill‑health. The first defender entered employment in 1989 and, from his income, “managed to continue to pay the mortgage” over the house. Certain other payments are averred. A few days before the death of Mrs Hill, the pursuer unexpectedly returned to the house. He moved back in. The first defender continued to pay council tax and “provided the pursuer with contributions to the housekeeping for food and utility bills.”
[8] There then follow these averments:
“Within six months of his return, the pursuer stopped making housekeeping arrangements. He stopped paying utility bills. He stopped purchasing any food. The pursuer would routinely leave the (house) for up to 6 weeks at a time to work on Tiree. The first defender was left to maintain the household and his brother from his own employment income. The first defender’s relationship with the pursuer deteriorated thereafter due to the pursuer’s chronic neglect of his responsibilities. The first defender continued to live at the (house) until about 1995 when he left due to the pursuer’s abusive behaviour. He paid the Council tax bills for a period of four years until 1995. He continued and continues to have access to the (house). He had keys up until his younger brother paid £8,000 for replacement doors and windows. His younger brother then provided him with a new set of keys. Between 2001 and 2010 there was no communication at all between the pursuer and the first defender. The first defender agreed to meet the pursuer in 2010. The pursuer told the first defender that he had moved out of the (house) and was living with his partner. He told the pursuer that he occasionally visited the (house) in order to check (it). The pursuer and the first defender discussed clearing out the (house) and putting (it) up for sale. They agreed to do so and agreed a date to start the process. The pursuer arranged for one week’s holiday from work in order to clear out the (house). On entering the (house), the first defender was astonished to find (it) in an appalling state of neglect and disrepair.”
The first defender avers that, in the whole circumstances, he had “no option” but to seek division and sale of the house. It is averred by the pursuer and admitted by the first defender that there is an action of division and sale at the instance of the first defender presently pending before the Sheriff Court at Paisley.
[9] The case came before the court for a hearing on the procedure roll on 3 June 2015.
Submissions for the first defender
[10] Mr O’Rourke, who appeared for the first defender, opened his submissions by referring to the decision in Perrett‘s Trustees v Perrett 1909 SC 522 (“Perrett’s Trustees”). Counsel accepted that Perrett’s Trustee is authority for the proposition that the special destination in this case “all other things being equal, falls to be applied”. He submitted, however, that there is a question as to whether Perrett’s Trustees is still good law. In what I take to be in a reference to section 19 of the Family Law (Scotland) Act 2006 (“the 2006 Act”), Mr O’Rourke said that legislation now provides that a special destination in favour of a spouse is not effective after divorce. There remains what counsel described as “this rather isolated set of circumstances” where parties have separated, but are not divorced. A case of that type would be governed by Perrett’s Trustees. Mr O’Rourke observed that the decision in Perrett’s Trustees is noted in Westlaw UK to have attracted “mixed or mildly negative judicial treatment”. If one follows through the cases over the years, said counsel, it is clear that there is at least some question as to just how sound the decision is in Perrett’s Trustees.
[11] Leaving Perrett’s Trustees to one side, Mr O’Rourke explained that the action is defended on the basis of three alternative arguments. The first is that, even if the transfer to the first defender of Mrs Hill’s one‑half joint pro indiviso share of the house was wrongful, given the existence of the special destination, his title amounted to an a non‑domino disposition and, on...
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