The Board Of Management Of Aberdeen College V. Stewart Watt Youngson And Another
| Jurisdiction | Scotland |
| Judge | Lord Menzies |
| Neutral Citation | [2005] CSOH 31 |
| Date | 25 February 2005 |
| Docket Number | A305/04 |
| Court | Court of Session |
| Published date | 25 February 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 31 | |
| A305/04
| OPINION OF LORD MENZIES in the cause THE BOARD OF MANAGEMENT OF ABERDEEN COLLEGE Pursuers; against STEWART WATT YOUNGSON and ANOTHER Defenders: ________________ |
Pursuers: A. F. Stewart; Paull & Williamsons
Defenders: Cowie; Balfour & Manson (for Peterkins, Aberdeen)
25 February 2005
Introduction
[1]This case raises a question of conveyancing law which, although the subject of academic discussion, both counsel appearing before me told me had not been the subject of any authoritative decision. The short question is whether a disposition granted by a disponer in favour of himself can be a valid foundation writ for the purposes of positive prescription in terms of section 1(1) of the Prescription and Limitation (Scotland) Act 1973.
[2]The relevant passages of section 1 of the 1973 Act provide inter alia as follows:
"1(1)If in the case of an interest in particular land, being an interest to which this section applies -
(a)the interest has been possessed by any person, or by any person and his successors, for a continuous period of ten years openly, peaceably and without any judicial interruption, and
(b)the possession was founded on, and followed (i) the recording of a deed which is sufficient in respect of its terms to constitute in favour of that person a title to that interest in the particular land, or in land of a description habile to include the particular land, or (ii) registration of that interest in favour of that person in the Land Register of Scotland, subject to an exclusion of indemnity under section 12(2) of the Land Registration (Scotland) Act 1979,
then, as from the expiration of the said period, the validity of the title so far as relating to the said interest in the particular land shall be exempt from challenge.
(1A)Subsection (1) above shall not apply where -
(a)possession was founded on the recording of a deed which is invalid ex facie or was forged ..."
[3]In the present case, the pursuers aver that certain heritable subjects were conveyed to the City of Aberdeen Council by disposition dated May 1944 and recorded in January 1945. In November 1989 Grampian Regional Council, the statutory successors of the City of Aberdeen Council as education authority, recorded a notice of title to said subjects. The subjects subsequently vested in the pursuers by virtue of the Further and Higher Education (Scotland) Act 1992, the Transfer of Colleges Further Education (Scotland) Order 1992 and a Transfer and Vesting Agreement entered into between the pursuers and Grampian Regional Council dated 1994. Notwithstanding these steps, William Phillip Youngson, Mrs Gladys Watt or Youngson, Stewart Watt Youngson and John Charles Youngson granted to themselves an a non domino disposition of part of these subjects, which was dated 2 July 1993 and recorded on 23 July 1993. William Phillip Youngson and Mrs Gladys Watt or Youngson have since died, and their share of said subjects was conveyed to the defenders by docquets dated October 1999 and February and March 2000. The pursuers aver that the a non domino disposition is not sufficient in its terms to constitute in favour of the defenders a title to the interest in the land purported to be conveyed, because the same parties are named as both disponers and disponees. In any event, the pursuers aver that the defenders have not established their title by prescription. The pursuers accordingly seek reduction of the a non domino disposition and the docquets dated 1999 and 2000 in favour of the defenders. The defenders maintain that the a non domino disposition is a valid foundation writ, and they further aver that they have possessed the subjects openly, peaceably and without judicial interruption in the period from 1993 to 2003. The present action was raised in February 2004. The matter came before me on the Procedure Roll on the pursuers' second and fourth pleas-in-law. Their second plea-in-law is in the following terms:
"The Disposition referred to in the Third Conclusion not having been sufficient to found prescriptive possession, is invalid and decree in terms of said Conclusion should be pronounced."
The fourth plea-in-law was directed at the relevancy and specification of the defences.
Submissions for the pursuers
[4]Mr Stewart for the pursuers moved me to sustain their second and fourth pleas-in-law and grant reduction in terms of the third Conclusion. He accepted that if I was against him on this motion some form of probation would be required, and in that event he invited me to put the case out By Order to enable the scope of any proof to be discussed. (Mr Cowie for the defenders agreed that this was the appropriate procedure in the event that I was with him).
[5]Mr Stewart made his submissions under two broad heads (although they were closely linked); he approached the issue first by applying the general law of contract, and second by applying the principles of conveyancing law. With regard to contractual principles, he submitted that as well as being an executory deed, a disposition is also a contract imposing obligations. In support of this proposition he referred me to Gretton & Reid, Conveyancing (3rd Edition) at paragraph 11-18. The 1993 disposition by the Youngsons in their own favour contained all the contractual obligations referred to by Gretton & Reid. Put at its simplest, his submission was that a person cannot contract with himself. In support of this proposition he referred me to Kildrummy (Jersey) Limited v Inland Revenue Commissioners 1991 S.C. 1 and to Clydesdale Bank Plc v Davidson 1998 S.C. (H.L.) 51.
[6]Looked at from the perspective of an effective conveyance of title to land, counsel submitted that the 1993 disposition is patently invalid because there has been no transfer of property. Although the law no longer requires the handing over of earth and stone to the disponee, "Scots law has always required a public act of some kind to transfer property inland. This step is the equivalent of traditio in the case of moveables. It is an essential step in the process of transferring ownership, according to the maxim traditionibus non nudis pactis transferuntur rerum dominia" - Sharp v Thomson 1995 S.C. 455 per Lord President Hope at 466. Although the procedures of transfer were modernised and simplified by section 15 of the Titles to Land Consolidation Act 1868, nevertheless it remains the case that transfer is essential - it is delivery, not a bare contract, which transfers ownership. In support of this counsel referred me to Gretton & Reid (op. cit.) at paragraph 7-25, and Watson v Shields 1996 S.C.L.R. 81. Counsel submitted that the opposite view to the effect that the granter of an a non domino disposition may effectively convey the subjects to himself,...
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