Magistrates of Banff v Ruthin Castle Ltd
| Jurisdiction | Scotland |
| Judgment Date | 03 December 1943 |
| Date | 03 December 1943 |
| Docket Number | No. 6. |
| Court | Court of Session |
SC.
Heritable Property—Common property—Joint property—Burgh—Property and rights of burghs—Heritage disponed to two burghs "jointly and to their joint assignees"—Whether subjects a separate trust or part of common good of each burgh—Lease—Validity—Town Councils (Scotland) Act, 1900 (63 and 64 Vict. cap. 49), sec. 98.
A mansion house and part of the park immediately adjoining it were offered by the proprietor to two neighbouring burghs as a gift, free of all restrictions, the donor expressing his conviction that the corporations of the two burghs would know how to act for "the well-being of the community" and by a disposition granted in 1907, upon a narrative of his offer and its acceptance, he conveyed the subjects to the provost, magistrates and councillors of the burghs "jointly and to their joint assignees."
In 1909 the disponees, as proprietors, granted a lease for ninety-nine years of the mansion house and part of the land, and in 1913 the tenants, with consent of the lessors, assigned the lease to other tenants, who in 1940 renounced the lease as being null and void under section 98 of the Town Councils (Scotland) Act, 1900, on the ground that, as the subjects formed part of the common good of both burghs, the lease should have been entered into by public roup, after advertisement, and not, as was the fact, by private bargain.
In an action at the instance of the provosts, magistrates and councillors of the two burghs for declarator that the lease of 1909 was valid and effectual, the pursuers, founding in particular upon the terms of the destination in the disposition, contended that the property was not part of the common good but constituted a separate trust estate held in joint ownership by the pursuers for behoof of the community formed by the inhabitants of the two burghs.
Held, after a proof (rev. judgment of Lord Stevenson), that the estate was property held by the two town councils not jointly and indivisibly but in common, and that the pro indiviso share of each burgh fell into that burgh's common good; and, accordingly, that the lease was invalid under section 98 of the Act of 1900.
Observations upon rights in "common property" and "joint property."
In an action brought in July 1941 against Ruthin Castle, Limited, the provost, magistrates and councillors of the royal burgh of Banff and the provost, magistrates and councillors of the burgh of Macduff as joint proprietors, for behoof of said burghs, of the estate of Duff House, Banff (and as such known as "The Duff House Trustees") in virtue of a disposition in their favour granted by the late Duke of Fife, dated 7th November 1907, concluded for (1) declarator that the lease of part of the estate of Duff House granted by them to Duff House, Limited, by whom it was assigned to the defenders, was a valid and effective lease, and that the defenders were now the tenants of the pursuers, and (2) decree for payment of £175, the half-yearly instalment of rent due under the lease.
By letter dated 23rd November 1906, addressed to his factor and communicated to the town councils of the royal burgh of Banff and of the burgh of Macduff, His Grace the late Duke of Fife intimated to the two town councils the following offer:—"I propose to ask the towns of Banff and Macduff to accept from me as a free gift the mansion of Duff House and that portion of the park immediately surrounding it, covering an area of about one hundred and forty acres. This would include the gardens, stables, two lodges and the rod fishing along the land comprised in the gift.
"I offer this gift with absolutely no restrictions as to the manner in which it is to be developed and managed, as I am convinced that the corporations of the two towns will know how to act for their material advantage, as well as for the recreation and well-being of the community.
"This scheme would have an additional value in that it would bring together Banff and Macduff, which are such close neighbours, and whose interests ought always to be identical; and, therefore, I would suggest that the property should be managed by the town councils of the two towns, with the provosts as chairmen in each alternate year."
This offer was accepted by the two town councils at a joint meeting on 26th November 1906.
The following were, inter alia, the averments of parties:—(Cond. 3) "By disposition dated 7th November 1907, … His Grace, on the narrative of the foregoing offer and acceptance, and in order to give effect to the same, gave granted and disponed “to the provost, magistrates and councillors of the said royal burgh of Banff and the provost, magistrates and councillors of the said burgh of Macduff jointly and to their joint assignees, heritably and irredeemably,” all and whole the four heritable properties therein set forth, being the said estate of Duff House. …" (Ans. 3) "Admitted under reference to the said disposition for its terms." (Cond. 4) "Since they became vested in the said estate, the pursuers have, acting jointly as a separate body known as “The Duff House Trustees,” administered the said estate for behoof of the two burghs. The annual accounts of the estate are each year submitted to the pursuers as Duff House Trustees, and in that capacity they decide as to the division of the surplus funds between the two burghs. The funds allocated to each burgh are then remitted to the appropriate town chamber-lain. The provosts of each of the said burghs preside as chairman in each alternate year at meetings of the Duff House Trustees. With reference to the averments in answer it is admitted that the burgh of Banff is a royal burgh and the burgh of Macduff a burgh of barony, but denied that the said estate forms part of the common good of either of the said burghs. Explained, under reference to condescendence 10, that it constitutes a separate trust estate held by the two town councils in joint ownership for behoof of the community formed by the inhabitants of the two burghs. The disposition is referred to for its terms. Quoad ultra the averments in answer, in so far as not coinciding herewith, are denied." (Ans. 4) "Explained that the said disposition was in favour of the provost, magistrates and councillors of the royal burgh of Banff and the provost, magistrates and councillors of the burgh of Macduff jointly. The method of administration of the said estate by the pursuers is not known. Quoad ultra denied. Explained that there is no such body as the Duff House Trustees, and that the said heritable property forms part of the common good of the said burghs. The burgh of Banff is a royal burgh and the burgh of Macduff is a burgh of barony. Being such, their corporations have power to hold and administer property as a common good, and they hold and administer the said property by virtue of their said powers and no other. The pursuers are called on to specify the powers by virtue of which they say the said corporations hold and administer the said heritable property." (Cond. 5) "By lease dated 13th and 15th September 1909, entered into between the pursuers, as proprietors of the said estate, on the one part, and Duff House, Limited, therein designed, on the other part, the pursuers let the said estate (with the exception of one field known as “the Princess Royal Park”) to the said Duff House, Limited, and their assignees whomsoever, but excluding always subtenants and assignees, legal and conventional, except with the consent of the pursuers in writing. The term of entry under the said lease was 15th May 1909, and the lease was to endure for the period of ninety-nine years from and after the said term. The rent under the said lease was £350 yearly, payable at two terms in the year, Whitsunday and Martinmas, by equal portions, commencing the first term's payment at the term of Martinmas, 11th November 1909, … With reference to the averments in answer, the lease is referred to for its terms. Admitted that the lease was entered into by private bargain and did not proceed by public roup. Denied that the lease is null and void. Section 98 of the Act of 1900 is referred to for its terms. The said estate did not, and does not, form any part of the common good of either of the said burghs. Reference is made to condescendences 4 and 10.Quoad ultra the averments in answer, in so far as not coinciding herewith, are denied." (Ans. 5) "The said pretended lease is referred to for its terms. Explained that said pretended lease was granted by the provost, magistrates and councillors of the royal burgh of Banff and the provost, magistrates and councillors of the burgh of Macduff, heritable proprietors of the subjects therein described, was sealed with the common seals of said burghs, and signed by a majority and quorum of the provost, magistrates and councillors and by the town clerks of said respective burghs. Further explained that said pretended lease was entered into by private bargain and did not proceed by public roup after due advertisement. The said pretended lease was accordingly null and void in terms of the Town Councils (Scotland) Act, 1900, section 98. Quoad ultra denied." (Cond. 7) "In February 1913, Duff House, Limited, entered into negotiations for the assignation of the said lease to a new company to be called The New Duff House Sanitarium, Limited, which was being formed to equip and use the subjects as a sanatorium. The consent of the pursuers to the said assignation was given … on 14th and 25th February 1913. By assignation dated 15th and 18th March 1913 … the said Duff House, Limited, with the consents therein mentioned assigned to the said The New Duff House Sanitarium, Limited, the said lease of 13th and 15th September 1909, granted by the pursuers as aforesaid … About the end of 1922 the company approached the pursuers with a proposal to purchase the estate, but the parties were unable to agree on terms. Thereafter the company acquired...
To continue reading
Request your trial
-
Andrew Wilson And Others V. Inverclyde Council
...were relevant to the issue of the effect of the Feu Contract of 1772. The first was Magistrates of Banff v. Ruthin Castle Limited 1944 S.C. 36. At page 49 Lord Mackay had provided a valuable historical perspective in relation to common good. At page 60, Lord Wark drew the distinction betwee......
- Barid's Exors v Commissioners of Inland Revenue
-
Simon Stephen V. The Most Noble Sir Guy David Innes Ker And Others
...This case is invariably referred to as a lease to joint tenants." In Provost, Magistrates & Councillors of Banff v Ruthin Castle Ltd 1944 SC 36 Lord Justice Clerk Cooper at page 68 drew the following distinction: "Property may be vested in two or more person either jointly or in common. Whe......
-
Glasgow Corporation v Flint. Flint v Glasgow Corporation
...260; D. & J. Nicol v. Dundee Harbour TrusteesELR,1915 S. C. (H. L.) 7, [1915] A. C. 550; Magistrates of Banff v. Ruthin Castle, Ltd.SC, 1944 S. C. 36. 2 Kemp v. Glasgow CorporationELR, 1920 S. C. (H. L.) 73, [1920] A. C. 3 Reading v. Attorney-GeneralELR, [1951] A. C. 507;In re French Protes......
-
2013-01-01
...ch 5, and Wightman and Perman, Common Good Land (n 4) at 12, with reference to the locus classicus of Magistrates of Banff v Ruthin Castle 1944 SC 36, noting that the most consistent interpretation is that all burgh property falls into the common good except for property acquired under a sp......