John Ian Baird V. Drumpelier & Mount Vernon Estates Ltd
| Jurisdiction | Scotland |
| Judge | Lord Hamilton |
| Date | 19 November 1999 |
| Docket Number | CA28/14 |
| Court | Court of Session |
| Published date | 19 November 1999 |
| OUTER HOUSE, COURT OF SESSION
| |
| CA28/14/99
| OPINION OF LORD HAMILTON in the cause JOHN IAN BAIRD Pursuer; against DRUMPELLIER & MOUNT VERNON ESTATES LIMITED Defender: ________________
|
Pursuer: Kennedy, Solicitor Advocate; Balfour & Manson
Defender: Bowen; McGrigor Donald
19 November 1999
In or about June 1996 the pursuer became interested in acquiring for development purposes an area of ground in the vicinity of Carrick Drive, Mount Vernon, Glasgow. Enquiries made by him and on his behalf suggested that the owners might be the defenders, who held title to certain land at Mount Vernon. Ultimately missives of sale were entered into between the defenders and the pursuer. The purchase price was £10,000. In furtherance of those missives the defenders on 8 April 1997 executed a disposition in favour of the pursuer of the relative area of ground. On 23 April 1997 in exchange for the purchase price they delivered that disposition to the pursuer. It contained a warrandice clause in the terms "and we grant warrandice".
It has subsequently emerged that the defenders did not in fact own the particular area of ground bearing to be disponed by the disposition. The Keeper of the Land Register has rejected the pursuer's application for a land certificate to cover the subjects comprised in that disposition, his investigations having revealed competing titles. In this action the pursuer seeks damages from the defenders for what, though not so expressed, is in effect breach of warrandice.
The principal response by the defenders is in the form of a counterclaim by which they seek rectification of the disposition by deletion of the words "and we grant warrandice" and substitution of the words "and we grant simple warrandice only". In that counterclaim they refer to the missives and to other correspondence (also referred to as "exchanges") passing between the parties' respective solicitors prior to the delivery of the disposition. They aver:
"In respect that it was the common intention of the parties as demonstrated by said exchanges and Missives that the defenders would not guarantee good title, the said disposition does not express accurately the intention of the parties".
In their defences to the principal action, in addition to relying on the counterclaim, the defenders aver:
"Separatim and in any event the pursuer having entered into said transaction with the defenders in the knowledge that the defenders were unable to provide good title and at a price which reflected that fact is barred from making the present claim".
The case was heard by me at debate. Mr Kennedy for the pursuer moved me to dismiss the counterclaim as irrelevant. He also moved me to repel the defences insofar as directed to the merits and to allow proof restricted to the quantum of damages. Mr Bowen for the defenders sought a proof before answer both in the principal action and in the counterclaim, under exclusion of two sentences (which he maintained were irrelevant) in the pursuer's answers to the counterclaim.
The missives opened with a formal offer to purchase dated 19 October 1996 addressed by the pursuer's solicitors to the defenders' solicitors. There was annexed to that offer a Schedule of Conditions certain of which, namely, those numbered 2, 3, 4, 5, 6, 7, 8, 9, 12 and 17 were, by condition 3 of the offer, declared to be incorporated in and to form part of that offer. Scheduled condition 8 provided:
"In exchange for the purchase price the seller will execute and deliver a valid disposition of the subjects of sale in favour of the purchaser and will exhibit or deliver: ..."
There followed sub-clauses identifying various documents to be delivered or exhibited, including "clear searches in the Property Register ... [for the prescriptive period] which will not disclose anything adverse to the seller's right to grant a valid marketable title in favour of the purchaser ..." and "a valid marketable prescriptive progress of titles".
By a formal qualified acceptance dated 13 December 1996 addressed by the defenders' solicitors to the pursuer's solicitors the defenders accepted the pursuer's offer subject to certain qualifications. Qualification 5 was in the following terms:
"For the avoidance of doubt, the reference within condition 3 of your said offer to conditions '2, 3, 4, 5, 6, 7, 8 and 9' of the Schedule of Conditions attached to your said offer shall all be held to be delete.
Titles for the subjects of sale have been exhibited to you and you shall be deemed to have satisfied yourselves as to the terms thereof, as to the extent of the subjects of sale and any access required thereto.
No property enquiry reports of any sort shall be exhibited or delivered".
The missives were concluded by a formal acceptance (dated 20 January 1997 from the pursuer's solicitors) of that qualified acceptance.
As the defenders also seek to rely upon earlier non-formal correspondence passing between the parties' solicitors, it is appropriate to narrate the material parts of it. The correspondence opens with a letter dated 19 July 1996 from the pursuer's solicitors who had learned that the defenders might be the proprietors of the ground in which the pursuer was interested and that a particular firm of solicitors might be their agents. The letter dated 19 July enquired whether a title could be produced to confirm the defenders' ownership. The defenders' solicitors responded by letter dated 25 July confirming their agency but explaining that, while their clients owned heritable property in the area "our clients' Title is such that it would be almost impossible to pinpoint exactly our clients' areas of ownership ...". They continued that they were seeking instructions from their clients and invited the pursuer's solicitors to let them have his proposals for consideration. By a letter dated 31 July the pursuer's solicitors enquired whether it would be possible for the defenders' solicitors to instruct (ie. apply for) a "Form 10 Report" (a preregistration report from the Keeper as to the state of the title). The defenders' solicitors responded by a letter dated 4 August observing that until they received instructions to proceed they were not keen to incur expense but could see no reason for the pursuer's solicitors not to instruct the appropriate Report. They continued:
"We can confirm that our clients became infeft following upon notice of title in favour of Drumpellier & Mount Vernon Estates Limited as Trustees of the late David William Ramsay Carrick Buchanan recorded GRS (Lanark) 9 September 1966".
On 12 August the pursuer's solicitors wrote to the defenders' solicitors enclosing a Form 10 Report which they had obtained from the Keeper. Its terms had confirmed the pursuer's solicitors' belief that the defenders were the owners of the area of ground in which the pursuer was interested. On 27 August the defenders' solicitors responded stating:
"Our clients appear to agree that the property at Kenmure Avenue is owned by them. Please let us have your clients' proposals and we shall take further instructions".
(In the correspondence and in the subsequent missives the area of ground was referred to as at Kenmure Avenue while the disposition ultimately granted described the ground as ""lying generally to the southwest of Carrick Drive", a street adjacent to Kenmure Avenue; but nothing material turns, in my view, on that variance). Correspondence then followed in which an informal proposal was made on behalf of the pursuer which the defenders indicated would be acceptable. There was some correspondence about the exact boundaries of the subjects. However, none of the correspondence passing after 27 August touched on the question of the defenders' right and title to the subjects of proposed sale, other than that on 30 December the defenders' solicitors, in response to a request by the pursuer's solicitors to inspect the defenders' title, sent to the pursuer's solicitors "a copy of our clients' principal title". That copy title was a copy of a Notice of Title of 1966 relative to "ALL and WHOLE the lands and estate of Drumpellier, Mount Vernon and Others" under exception of...
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