Kemp v Magistrates of Larges
| Jurisdiction | England & Wales |
| Judge | Lord Thankerton,Lord Russell of Killowen,Lord Macmillan,Lord Wright |
| Judgment Date | 30 March 1939 |
| Judgment citation (vLex) | [1939] UKHL J0330-1 |
| Date | 30 March 1939 |
| Court | House of Lords |
| Docket Number | No. 2. |
[1939] UKHL J0330-1
House of Lords
Lord Thankerton
Lord Russell of Killowen
Lord Macmillan
Lord Wright
Lord Porter
After hearing Counsel, as well on Tuesday the 28th day of February last, as on Thursday the 2d and Friday the 3d, days of this instant March, upon the Petition and Appeal of The Provost, Magistrates and Councillors of the Burgh of Largs as adjoining proprietors for any interest competent to them as Superiors of a Piece of Ground situated in Gallowgate Street and Main Street, Largs, bounded on the North by the Green of Largs, on the South by the Street leading to the Pier known as Main Street, on the East by the said Gallowgate Street (sometime known as the turnpike Road to Greenock), and on the West by the promenade, conform to Disposition by the Trustees of the late Miss Florence St. Aubyn Brisbane, in favour of the Provost, Magistrates and Councillors of the Burgh of Largs, dated the 7th and subsequent dates and recorded in the Division of the General Register of Sasines for the County of Ayr the 24th, all days of September 1937, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland of the 10th of June 1938, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Henry Kemp, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor of the 10th day of June 1938, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
My noble and learned friend Lord Macmillan, in the opinion which he is about to deliver, has so clearly and fully expressed the views that I have formed in this Appeal, that it is sufficient for me to express my concurrence in it, and I will only venture to make a small addition to it.
Lord Moncrieff and Lord Pitman, who dissented from the views of the majority in the Inner House, both took the view that there was no ambiguity in the terms of the clause under discussion, and that it clearly expressed a real burden. But, for the reasons explained by my noble and learned friend, I am unable to agree that there is no ambiguity, and, I think that if an instrument of sasine had been necessary in this case, the draughtsman would have been puzzled as to whether this clause—especially in view of its opening words—formed part of the dispositive clause, which he was bound to incorporate in its entirety in the instrument. Lord Moncrieff relies on the case of Magistrates of Airdrie v. Smith, (1850) 12 D. 1223, but, with all respect to the learned Judge, it appears to me that, so far as it goes, the case does not support his view, as it was not decided as matter of feudal title only, as the Lord President expressly states, but on the ground of the trust imposed as a condition of the grant, which inter alia was made clear in the precept of sasine. As the Lord President states, the Court had to look at the real nature of the transaction.
I therefore agree with my noble and learned friend that the Appeal should be dismissed with costs.
My Lords,
I also have had the opportunity of reading and considering the opinion about to be delivered by my noble and learned friend Lord Macmillan. I concur in it and have nothing to add.
My Lords,
The question for determination in this appeal is whether certain words contained in a Disposition granted in 1833 of lands on the shore of Largs, Ayrshire, have imposed a real burden or restriction on these lands so as to affect them in the hands of a singular successor. The Disposition is an anomalous one and the circumstances in which it came to be granted may be briefly stated.
In the year 1832 the Largs Harbour Act was passed whereby a number of persons were incorporated under the name of the Largs Harbour Company for the purpose of constructing and maintaining a pier or harbour and other necessary works at Largs. The 90th section of the Act declared that it should be deemed and taken to be a Public Act, to be judicially taken notice of as such by all judges, justices and others without being specially pleaded. By section 37 the Company were empowered to treat and agree with the persons whose names were set forth in Schedule A to the Act for the purchase of the lands specified in that Schedule. The only lands specified in Schedule A are described as "shore or beach at Largs," the owners being stated to be Sir Thomas Makdougall Brisbane, K.C.B., or his Trustees and the occupiers being stated to be the same persons with the addition of four others of whom three are among the original incorporated members of the Company. The Act confers no compulsory powers of acquiring land and presumably such powers were not thought necessary in view of the fact that the owner of the scheduled land was himself one of the promoters. The disposition with which this appeal is concerned is a disposition of the scheduled land granted in pursuance of the Act in favour of the Company by Sir Thomas Makdougall Brisbane and others the trust disponees of the late Thomas Brisbane and Sir Thomas Makdougall Brisbane also as heir and representative of the late Thomas Brisbane his father, dated 7th and 13th June and recorded in the Particular Register of Sasines, etc., kept for the Shire of Ayr, 7th December, all in the year 1833.
By section 39 of the Act persons selling "any lands or heritages" to the Company are required to grant the conveyance thereof in the following prescribed form:—
"In pursuance of an Act passed in the Year of the Reign of His Majesty King William the Fourth, intituled [ here set forth the Title of this Act], I [ or we] , in consideration of the Sum of to me [ or us] paid by the Largs Harbour Company, incorporated by the said Act [ or other Consideration, as the Case may be], do hereby assign, dispone, and convey, to and in favour of the said Company, all and whole [ here describe the Subjects conveyed], together with all my [ or our] Right, Title, and Interest in and to the said Subjects above conveyed, and every Part, Pertinent, and Portion thereof, to be holden by the said Company from the Day of , and from thenceforth for ever in all Time thereafter. [ Here insert the Conditions of Sale, if any be, and a Clause of Warrandice and Registration]. In witness whereof these Presents, written upon this and the preceding Pages, by , are subscribed by me [ or us], at , the Day of in the Year One thousand eight hundred and , before these Witnesses, and."
Section 39 further provides that every such conveyance on being registered in the Register of Sasines (the keeper being authorized and required to record the same) "shall have and receive the same effect and be as valid and effectual to all intents and purposes as if a formal absolute and irredeemable disposition or other deed of conveyance known in law had been granted and executed and the same followed by infeftment and sasine thereon duly recorded according to the law and practice of Scotland, any law, custom or usage to the contrary notwith-standing."
If the Company had obtained a conveyance of the scheduled lands in the statutory form difficult and as yet unresolved questions might have arisen as to the precise nature of the tenure on which they held the lands ( cf. Caledonian Railway Company v. Heriot's Trustees, 1915, S.C. H.L. 52; [1915] A.C. 1046). But the conveyancer who prepared the conveyance did not adhere to the statutory form. He followed it scrupulously down to and including the words "to be holden by the said Company from the [term of Whitsunday, 1832] and from thenceforth for ever in all time thereafter." The statutory form then directs the "conditions of sale, if any be" to be inserted, but the draftsman at this point left his model. He first appended to the words I have just quoted—running right on—these words, "for the purpose of erecting and maintaining a pier or harbour and other necessary works there-with connected." Then he proceeded, entirely at his own hand, to add the following words:—
"To be holden the subjects above conveyed of and under us as trustees foresaid and of and under me the said Sir Thomas Makdougall Brisbane and my foresaids in feu farm fee and heritage for payment of one penny Scots money upon the ground of the said lands in name of blench duty at the term of Whitsunday...
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