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Can you repeat the exercise and let me have a copy of
Can you repeat the exercise and let me have a copy of Hamilton v Grampian Regional Council,Lord President ,Lord Hope, 1st Div,20 Dec 1995-please?
1 year ago.
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replied 1 year ago.
BRIAN GREGORY HAMILTON v GRAMPIAN REGIONAL COUNCIL AND ANOTHER
COURT OF SESSION: INNER HOUSE (FIRST DIVISION)
LORD PRESIDENT, LORD MILLIGAN, LORD JOHNSTON
20 DECEMBER 1995
Act: Tyre, Murray Beith & Murray WS; Alt: Stewart QC, Ferguson, Shepherd & Wedderburn WS
The pursuer is the heritabie proprietor of the lands and estates of the Marquisate, Earldom and Lordship of Huntly, conform to a disposition in his favour by Dr Dennistoun (otherwise Dennis) Gordon Teall of Teallach dated 27 October 1992 and recorded in the Division of the General Register of Sasines for the County of Ab-erdeen on 6 November 1992. He claims that subjects in the parish of Rhynie and County of Aberdeen known as Lesmore School and Lesmore Schoolhouse form part of the lands and estates of the Marquisate. The purpose of this action is to assert his right to these subjects as heritable proprietor.
In terms of the conclusions of the summons he seeks declarator that he is the heritable proprietor of the sub-jects, production and reduction of a disposition of them by the first defenders, Grampian Regional Council, to David John Thow dated 23 January and recorded in the General Register of Sasines on 11 March 1986 and decree of ejection against the second defender, John Thow, who is the occupier following the death of David John Thow on 10 April 1986. After a proof before answer the Lord Ordinary, by his interlocutor dated 12 Jan-uary 1985, repelled the pleas in law for the first and second defenders and granted decree of declarator, re-duction and ejection. It is against his interlocutor that the defenders have now reclaimed.
The dispute which this action seeks to resolve has its origin in the provisions of the School Sites Act 1841. The purpose of that Act, according to its short title, was to afford further facilities for the conveyance and en-dowment of sites for schools. Section 2 of the Act is in these terms:
"And be it enacted, that any person, being seised in fee simple, fee tail, or for life, of and in any manor or lands of freehold, copyhold, or customary tenure, and having the beneficial interest therein, or in Scotland being the proprietor in fee simple or under entail, and in possession for the time being, may grant, convey or enfranchise by way of gift, sale, or exchange, in fee simple or for a term of years, any quantity not exceeding one acre of such land, as a site for a school for the education of poor persons, or for the residence of the schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in reli-gious and useful knowledge; provided that no such grant made by any person seised only for life of and in any such manor or lands shall be valid, unless the person next entitled to the same in remainder, in fee sim-ple or fee tail, (if legally competent,) shall be a party to and join in such grant: provided also, that where any portion of waste or commonable land shall be gratuitously conveyed by any lord or lady of a manor for any such purposes as aforesaid the rights and interests of all persons in the said land shall be barred and divest-ed by such conveyance: provided also, that upon the land so granted as aforesaid, or any part thereof, ceas-ing to be used for the purposes in this Act mentioned, the same shall thereupon immediately revert to and become a portion of the said estate held in fee simple or otherwise, or of any manor or land as aforesaid, as fully to all intents and purposes as if this Act had not been passed, any thing herein contained to the contrary notwithstanding."
By section 10 it was provided that all grants, conveyances and allowances of any site for a school, or the residence of a school master or schoolmistress, under the provisions of the Act in respect of 'any land, mes-suages, or buildings' might be made according to a form prescribed by the section. Section 10 also provided that such a conveyance, on being recorded within sixty days of the date thereof in the Register of Sasines, was to be effectual in law to all intents and purposes and a complete bar to all other rights, titles, trusts, in-terests and incumbrances to in or upon the lands or heritages so conveyed. By section 14 it was provided that it was to be lawful for the trustees in whom the legal estate of the land or building was vested to sell or exchange the land or building to enable them to purchase or take on exchange any other more convenient or eligible site to be used for the purposes of the trust.
The broad purpose of this Act seems to be clear enough. This was to enable land, including land held sub-ject to an entail, to be conveyed to trustees for use as a site for the education of poor persons or for the resi-dence of the school master or school mistress, subject to the provisions of the proviso. In particular it was to enable the grantor to be assured that, in the event of the land or any part of it ceasing to be used for the pur-poses described in the Act, it would revert immediately to 'the said estate held in fee simple or otherwise', freed from the purposes for which it had been conveyed to the trustees. The language of the Act however, and in particular that of section 2, is confusing and not well adapted to Scots property law. In Houldsworth v School Board of Cambusnethan (1904) 7F 291 at p 302 Lord Trayner said that its language was more appli-cable to the constitution of a heritable estate in England than in Scotland. In other respects also the Act is not well drafted, and it is not easy to make sense of it. But the idea seems to have been to provide a statutory framework, including a statutory form of conveyance and a statutory reversion, to ensure that the land was used only for the charitable purpose which it described. Its main value is likely to have been in regard to lands held subject to an entail, one of the cardinal prohibitions of which was against alienation of the lands. But in Houldsworth at p 303 Lord Moncreiff noted that, while the proprietor of land held in fee simple in Scot-land could do as he liked with his ground, it was open to him also to adopt the terms of the Act as the basis of his grant.
The subjects on which the school and schoolhouse at Lesmore were erected were held subject to an entail. They were conveyed to the trustees in the form provided by section 10 of the 1841 Act by a deed of convey-ance dated 22 September and recorded in the General Register of Sasines on 27 September 1858. The sub-jects were described therein as 'all and whole that piece of ground part of the Farm of Milltown of Lesmore' The deed was granted by the Duke of Richmond and Lennox in favour of himself and his heirs and succes-sors in the Entailed Lands and Estates of the Marquisate, Earldom and Lordship of Huntly together with the Minister and Elders of the Established Church and Parish of Rhynie in the County of Aberdeen and their successors in office for the time being, to be used by them for the purposes of the Act 'and to be applied as a site for a school for poor persons of and in the parish of Rhynie and for the residence of the Teacher or Teachers of the said School and for no other purpose whatever'.
Thereafter the subjects were used as a school and schoolhouse under the management of the minister and elders of the parish church. The setting up by the Education (Scotland) Act 1872 of a Board of Education for Scotland and of a system of local school boards then raised the question whether it was appropriate for that system of management to continue. Mr David Crawford Currie, a solicitor employed by the first defenders, gave evidence at the proof about the history of the negotiations which followed the commencement of that Act between the managers of the existing school and the new Board. These appear to have been difficult, but eventually a solution was reached which allowed the staff to continue in service and the church to use the existing school for the purposes of a Sunday School. Thus, on or about 12 May 1875, with the sanction of the Board of Education for Scotland, the school and its site were transferred by the trustees in terms of section 38 of the 1872 Act to the Rhynie Parish School Board. The Board and their successors as education authority for the district became then and thereafter the uninfeft proprietors in possession of the subjects. They remained vested however in the trustees to whom they had been conveyed by the 1858 deed of con-veyance.
Section 38 of the 1872 Act is in these terms:
"With respect to schools now existing or which may hereafter exist in any parish or burgh erected or acquired and maintained or partly maintained with funds derived from contributions or donations (whether by the members of aparticular church or religious body or not) for the purpose, or authorised by the contributors or donors to be applied for the purpose of promoting education; be it enacted, that it shall be lawful for the per-son or persons vested with the title to any such school, with the consent of the person or persons having the administration of the trusts upon which the same is held, to transfer such school, together with the site there-of and any land or teacher's house held and used in connexion therewith, to the school board of the parish or burgh in which it is situated, to the end and effect that such school shall thereafter be under the management of such board as a public school in the same manner as any public school under this Act, and it shall be law-ful for the school board, with the sanction of the Board of Education, to accept of such transference, and on the same being made and accepted the said school, with the site and any land and teacher's house included in the transference, shall be vested in the school board and the school shall thereafter be deemed to be a public school under this Act, and shall be maintained and managed by the school board, and be subject to all the provisions of this Act accordingly."
Two other provisions of the 1872 Act should be noted at this stage. By section 39 it was provided that con-sent to the transference of a school might be given by a majority of not less than two-thirds of the persons having the administration of the trusts on which the school was held, that the transference might be effected by an ordinary disposition or other deed of conveyance by the persons vested with the title, that the persons whose consent was required need not be parties to the conveyance, and that the validity of the transference was not to be subject to challenge unless it was made judicially within six months after the recording of the deed of conveyance. This section was referred to in the course of the argument to demonstrate that, while the transference of the management of the school to a school board might be effected in this way to confer a title on the school board, it was not essential to the validity of the transference under section 38 that the school board be given a right of property in the school.
Among the provisions of the Act subject to which the school was to be maintained and managed by the school board was section 36, by which it was provided that a school board might with the sanction of the Board of Education discontinue or change the site of any school under their management, and that they might sell and dispose of any land and building connected with any school so discontinued or the site of which was so changed. It is hard to see how the statutory right of reversion under section 2 could have sur-vived a sale by the school board under that section, if the title to the school had been vested in them as edu-cation authority by a conveyance recorded under section 39 of the Act. But the site of the school was never conveyed by the trustees of the former school or their successors to the school board.
From 1875 to 1963 the school and schoolhouse were continually used for the purposes of a school by the school board and their successors as local education authority. In 1963 however the school was closed with the approval of the Secretary of State, following a decision to this effect by a sub-committee of the Education Committee of Aberdeen County Council. There appears to have been no advertisement about this, and no public hearing about the decision took place. A proposal that the subjects should be used as an outdoor cen-tre came to nothing. They were then leased to a local farmer to look after. In 1965 the Education Committee resolved to sell the school.
No attempt appears to have been made at this stage to deal with the difficulty created by the third proviso to section 2 of the 1841 Act by making use of the provisions of section 119 of the Education (Scotland) Act 1962. Why this was not done must be a matter of conjecture. Mr Currie was unable to say whether the per-sons involved in the transaction were aware of the problem. Perhaps it was not appreciated by them that there was a risk that somebody might argue that the land had reverted to the grantor in terms of the proviso. Whatever the reason, the education authority took no steps to deal with the proviso and entered into mis-sives with the farmer for the sale of the land to him. No conveyance was granted in implement of this sale. His widow later sold the subjects to David Robert Thow, and at her request Grampian Regional Council granted a disposition to him in 1986. This is the disposition which the pursuer now seeks to have reduced. The action which he has taken has had the effect of interrupting the running of the positive prescription, by which David John Thow and his successors would have acquired a good title to the subjects at the end of the prescriptive period.
Against this background a number of questions were raised in the course of the debate before the Lord Ordi-nary. He has expressed some concern at the fact that the greater part of the submissions made to him by counsel for the defenders consisted of points of which either the most slender notice or no notice at all had been given in the pleadings. He thought that the pursuer's counsel were right to complain that matters of fact had been raised which had not been focussed in the pleadings and about which no opportunity had been given for the leading of evidence. It is stated in the defenders' grounds of appeal that this criticism was un-founded, and that if the Lord Ordinary allowed these matters to colour his judgment he was in error. For my part I think that there is force in the Lord Ordinary's comment that the defender's pleadings did not give ade-quate notice of the points which they intended to raise. This is especially so in regard to the question whether the site of the school was or was not comprised in the lands and estates of the Marquisate, Earldom and Lordship of Huntly. But, for the reasons which I shall explain, I do not think that this has affected the result in this case. Nor have I detected anything in the Lord Ordinary's opinion to indicate that he allowed his criticism of the defenders' pleadings to colour his judgment.
At the outset of the hearing before us counsel for the defenders indicated they did not wish to raise again all the arguments which had been presented to the Lord Ordinary. Their submissions were directed to the fol-lowing three issues only which, in my opinion, have correctly identified the critical points which require deci-sion in this case. These were: (1) Whether the Lord Ordinary erred in reaching the conclusion on the material before him that the subjects described in the 1858 Conveyance formed part of the lands and estates of the Marquisate, Earldom and Lordship of Huntly ('The Marquisate Lands'); (2) Whether, if they did form part of the Marquisate Lands, the Lord Ordinary erred in holding that the statutory reversion in terms of the third proviso to section 2 of the 1841 Act survived the transference of the school to the school board undersection 38 of the 1872 Act; and (3) Whether if the proviso still applies, the Lord ordinary erred in holding that the school site reverted to the heritable proprietor of the Marquisate Lands and not to the heritable proprietor of the farm of Milltown of Lesmore.
On the first point I am satisfied, for the reasons described in more detail by Lord Johnston, that the grant contained in the 1858 Conveyance was made from the Marquisate Lands. The Instrument of Sasine of 1850 by which the Duke of Richmond and Lennox acquired a heritable title to the Marquisate Lands may be thought at first sight to give rise to some difficulty. The first part, which contains a lengthy description of the subjects comprised in Marquisate Lands, includes the following:
"the town and lands of Lessmore with the mains and manor place thereof Bellhennie Kirktown of Essie with the advocation donation and right of patronage of the parish kirk and parish of Essie Blackmiddens Bruntlands Stonebarn Glack with the mill of Lessmore and the teinds as well parsonage as vicarage of the said lands . . . lying within the said parishes of Rhynie and Essie and the Sheriffdom of Aberdeen."
Then in the second part, which describes lands not part of the Marquisate Lands, there appear the words:
"the mill of Lessmore with the mill lands multures and sequels thereof the town and lands of Glack Tonburns and Blackmiddens as part and pertinents of the said lands lying within the parish of Essie Barony of Strath-bogie and Sheriffdom of Aberdeen."
The fact that the mill of Lessmore is referred to twice in this deed was said by the defenders to create an ambiguity which was incapable of being resolved by the evidence which had been led in this case.
On closer examination of the wording of the Instrument of Sasine however I do not agree that there is an un-resolved ambiguity as to whether the subjects described in the 1858 conveyance as 'the farm of Milltown of Lesmore' formed part of the Marquisate Lands. In my opinion it is significant that the reference here is to the 'farm', not to the 'mill', at Lesmore. The word 'farm' does not appear anywhere in the Instrument of Sasine. But the words 'town and lands' and 'mains', which are included as part of the description of Lesmore com-prised in the Marquisate Lands, indicate that this description was intended to apply to lands which, according to the ordinary use of the English language, included at least one farm. The Concise Scots Dictionary (1985) defines the word 'town' as including 'an area of arable land on an estate . . . a farm with its buildings and im-mediately surrounding area'. It defines 'mains' as meaning 'the home farm of an estate, cultivated by or for the proprietor'. A 'mill' on the other hand is a place for threshing grain, not a farm. I do not see any difficulty in reading the words which were included in the description of the Marquisate Lands as including 'the Farm of Milltown of Lesmore'. On the other hand, to read the words which are included in the description of the non-Marquisate Lands as including a farm seems to me to stretch these words beyond their ordinary meaning, as the only subjects referred to there are the mill.
As for the question whether the lands at Lesmore were or were not included in the Marquisate Lands at all, the position is I think put beyond doubt by the wording of the Act of 1685 by which the Charter of Erection dated 21 May 1684, to which the Instrument of Sasine of 1850 refers, was ratified. The designation of the Marquisate Lands is taken word for word from the quotation of the Charter of Erection which is set out in the statute. The reference in the 1850 Instrument of Sasines to 'the mill of Lessmore' in the description of the non-Marquisate Lands is certainly puzzling. It suggests that there may at this point in the deed have been some confusion in the mind of the conveyancer. But it is not necessary to resolve that question, as it is clear that there was no error in the inclusion of 'the town and lands of Lesmore with the mains and manor place thereof' in the Marquisate Lands. In my opinion that is enough to entitle the pursuer to succeed on this point.
Turning to the second point, I think that it is clear that the transference of the school to the school board had the effect that, from the date of the transference, the school ceased to be used only for the purposes narrat-ed in the 1841 Act. Those purposes were clearly defined in section 2 as being for the education of poor per-sons. The statutory from of disposition set out in section 10 states that the site was to be used as a site for a school for poor persons, and for the residence of the schoolmaster or schoolmistress, 'and for no other pur-poses whatever'. The effect of the transference was to enable the school board to use the school as a public school in the same manner as any other public school under that Act. As I understand the position, this in-volved widening the purposes for which the school could be used, as it was no longer to be restricted to use as a school for poor persons. This was something which could not have been done if the purposes set out in the 1841 Act had been adhered to. Similarly the approval of the Court would have been required if these purposes had been contained in a non-statutory form of trust deed constituting a public trust. The question, in regard to whether this change of purpose had the effect of bringing the third proviso in section 2 into oper-ation, is whether there was anything in the 1872 Act to prevent this and, if so, whether this defeated the pro-viso altogether or only suspended its operation for the time being.
In my opinion the opening words of section 38 of the 1872 Act are wide enough to apply to schools erected on land granted for use as a school under section 2 of the 1841 Act. The effect of section 38 was to enable those entrusted with the management of parish and burgh schools under the terms of any trust, including a trust constituted under section 2 of the 1841 Act, to transfer the school to a school board, so that it could thereafter be managed as a public school under the Act. The 1872 Act does not refer anywhere to the 1841 Act, as it is not included in the list of Acts recited in the preamble. But I think that section 38 can be taken to have had the effect of enlarging the trust purposes contained in the 1841 Act to enable schools set up under that Act to be transferred to the new school boards.
The Lord Ordinary said that he was not persuaded that the phrase 'poor school' in the 1841 Act had a tech-nical meaning such that the use of the school as a public school as defined by the 1872 Act involved any departure from the intention of the original grant so as in some way to take the case outside the 1841 Act altogether. I am not confident that an opinion can be expressed on this matter without more information than that provided by the brief evidence which was led in this case. But I think that the integrated system of edu-cation introduced by the 1872 Act did involve some widening of the purpose for which a former parish school of the kind set up under the 1841 Act could be used,if used only for the purposes of that Act. I prefer to deal with the matter by reading the words 'it shall be lawful' in section 38 as enabling the parish and burgh schools to be transferred to the school board, without risk of challenge that what was being done to enlarge the purpose was outwith the trust purposes subject to which these schools had been set up.
On the other hand I can find nothing in the 1872 Act to indicate that the effect of a transference of a school to the management of the school board under section 38 was to defeat the possibility of a reversion under the third proviso to section 2 of the 1841 Act at some in the future. In my opinion, so long as the persons to whom the school site was conveyed by the 1858 conveyance remained the heritable proprietors, the proviso continued to apply to the site. Any person dealing with them on the faith of the register would have notice that their title was subject to the provisions of the 1841 Act, to which reference was made in the conveyance as it was in the statutory form. The position might have been different if there had been a disposition of the site to the school board in terms of section 39 of the 1872 Act, and the positive prescription had been al-lowed to operate upon that disposition without interruption for the necessary period. But that is not what oc-curred in this case. So in my opinion the effect of the closure of the school in 1963 was to bring the statutory reversion into immediate operation in terms of the third proviso. I find support for this view in the provisions of section 119 of the Education (Scotland) Act 1962, re-enacted by section 106 of the Education (Scotland) Act 1980, and section 9 of the Education (Scotland) Act 1969, re-enacted by section 22(2) of the 1980 Act. The-se provisions recognise that the third proviso to section 2 of the 1841 Act may prevent effect being given to a scheme for the sale of land belonging to an educational endowment or to an education authority.
Mr Tyre for the pursuers submitted that the effect of the statutory reversion was to restore the right of proper-ty in the school immediately to the grantor, and that no further steps required to be taken by him to be re-stored to his position as the heritable proprietor. In my opinion, for the reasons explained in Sharp v Thom-son 1995 SLT 837, that cannot be its effect. The operation of the reversion, by force of statute, is not enough to transfer the real right in the property to the grantor. Its effect is to enable the grantor, upon the basis of the personal right given to him by the reversion, to enforce that right against all parties acting in conflict with it, to challenge the deeds of others and to obtain a recorded title to the property by the registration of his interest as proprietor on the Register of Sasines.
This brings me to the final point, which is whether the reversion which has occurred in this case is to the es-tate comprised in the Marquisate Lands or to the estate comprised in the Farm of Milltown of Lesmore. In view of the wording of the third proviso, which is far from easy to understand, this is a question which has caused me some difficulty.
In Houldsworth v School Board of Cambusnethan at p 302 Lord Trayner said that the land granted had ceased to be used for the purpose for which it had been conveyed to the trustees. He then observed:
"In these circumstances the statute distinctly provides that the lands so granted shall revert to the estate from which they were taken. Now, the estate from which they were taken was the estate of Mr Houldsworth of Coltness. The pursuer, as representative and heir of Mr Houldsworth of Coltness (out of which this trust property came), is now the person to whom it reverts, as it is no longer used for the purposes mentioned in the trust."
At p 304 Lord Moncreiff said, after quoting the terms of the proviso:
"That is the estate of the person, the proprietor who has made the grant for the erection of a school, or a schoolmaster's house."
It appears to me, from these observations, that the judges in that case were of the opinion that the reversion in terms of the third proviso was not to the person for the time being entitled to the lands from which the site was taken, but to the estate of the person who made the grant and his heirs and successors in that estate.
In Attorney-General v Shadwell  1 Ch 92 Warrington J said at p 99 that, as the premises had ceased to be used for the purposes in the Act mentioned and had therefore reverted to the land of which they formed part, they were now vested in the defendant Shadwell and his successors in title, owners of that land. In that case however there was no dispute as to the person in whose favour there had been a reversion. The de-fendant Shadwell was the tenant for life of the estate from which the land for the school had been taken. It did not matter whether the reversion was to the owner of the land or to the estate of the grantor. In Marchant v Onslow  2 All ER 707,  3 WLR 607 the deputy High Court Judge, David Neuberger QC, Com-mented on the difficulties created by the unsatisfactory drafting of section 2. He then quoted the following passage from the Law commission report on Property Law Rights of Reverter (1981) (Law Com No 111) pa-ra 29:
"What Parliament actually had in mind is a matter of pure speculation but the phraseology . . . suggests that it was expected that sites provided under the [Act] would always constitute small parts of landowners' exist-ing estates; and moreover, it was not anticipated that those estates would be broken up. If those expecta-tions had been fulfilled it would be a matter of substantial indifference whether the site reverted to the owner-ship of the grantor (or his successor) or was rejoined to the grantor's neighbouring land;" and the fact that the [Act expresses itself] in the latter manner would not give rise to problems. Unfortunately the conditions nec-essary for avoiding problems have not been satisfied."
At p 612G he observed that one could read the proviso as having the effect that the subject should revert to the original grantor or his successors in title, if one was to construe the reference in the proviso to 'the said estate' rather loosely as meaning the estate of the grantor.
In the present case it is not a matter of indifference whether the site reverted to the ownership of the grantor and his successors or was rejoined to the grantor's neighbouring land. But it has not been contended by the defenders that the reversion was to the Duke of Richmond and Lennox and his heirs and successors. The defenders aver in answer 3 that, if there was a reversion, it was 'to the particular land or estate of which the subjects formed part'. No specification is given in this averment of the particular land in favour of which re-version might be said to operate. But it was submitted to the Lord Ordinary that, in view of the terms of the 1858 Conveyance, the reversion was to the Farm of Milltown of Lesmore and not to the Marquisate Lands. As the Duke of Richmond disponed the Farm of Milltown of Lesmore to ***** ***** by disposition dated 9 July 1923 and recorded in the General Register of Sasines on 26 July 1923, it is clear that a reversion of the site to the farm would defeat the pursuer's claim that he is now the heritable proprietor of the site. On the other hand there is no dispute that a reversion of the site to the Marquisate Lands would enable him to suc-ceed in his claim.
I regard it as unsatisfactory to have to make this choice. It would have been unnecessary to do this if it had been contended, as perhaps it should have been contended, that the reversion was not to the land or estate of which the subjects form part but to the heirs and successors of the grantor. But as this argument is not open to the defenders in their pleadings and has not been advanced in this case, it is necessary to make the choice between the two alternatives with which we have been presented.
In my opinion the choice must depend upon the terms of the original grant. The piece of ground which it dis-poned was described as part of the Farm of Milltown of Lesmore. In my opinion these words were inserted in the deed for descriptive purposes only, to identify the particular part of the lands of the grantor from which the site had been taken for the purposes of the 1841 Act. The identity of the lands from which the site was taken for the purposes of the proviso is to be found in the extent of the lands to which the grantor had title. That title links the piece of ground to the Barony comprised in the Marquisate Lands, not just to the farm. Pri-or to 1923 the farm was not held under a separate title at all. It simply formed part of the Marquisate Lands, in just the same way as the site itself formed part of the Marquisate Lands. A further indication that it is the Marquisate Lands in whose favour the reversion should operate is to be found in the declaration by the gran-tor that his heirs and successors in the Marquisate Lands were to be among the trustees. This indicates an intention on his part that the connection of the site with the Marquisate Lands should remain notwithstanding its conveyance to the trustees. I agree with the Lord Ordinary that the terms of the grant do not support the defenders' argument that the reversion was to the farm as a separate parcel of what was previously com-prised in the Marquisate Lands.
For these reasons I would adhere to the Lord Ordinary's interlocutor and refuse the reclaiming motion.
LORD MILLIGAN: By Grant and Conveyance dated and recorded in September 1858, Charles Gordon Duke of Richmond and Lennox conveyed a site for a school, by way of gift, to himself and his heirs and successors in the entailed lands and estates of the Marquisate, Earldom and Lordship of Huntly and to the Minister and elders of Rhynie Parish Church and their respective successors in office for the time being, as trustees for the purposes of the School Sites Act 1841:
". . . to be applied as a site for a school for poor persons of and in the Parish of Rhynie and for the residence of the teacher or teachers of the said school and for no other purpose whatever",
such school to be under the management and control of the Kirk Session of Rhynie Parish Church. Thereaf-ter, a school was built on the site and used for, or incidentally to, the education of poor persons, as provided for by section 2 of the 1841 Act. Following the Education (Scotland) Act 1872, the school, its site and its ad-ministration were transferred to the local School Board constituted under that Act. Thereafter, the school was operated by the relevant education authority until its closure in 1963, without title ever being perfected. The pursuer now claims title to the site and buildings thereon in his capacity as proprietor of the lands and es-tates of the Marquisate, Earldom and Lordship of Huntly, in respect that the closing of the school in 1963 triggered the statutory reversion provided for in section 2 of the 1841 Act in the event that, and to the extent that, the site or any part of it ceased to be used for the purposes of education of poor persons as provided for in the 1841 Act.
The first question which arises for decision is whether the Lord Ordinary was right to accept the pursuer's contention that the school site as described in the 1858 conveyance formed part of the lands and estates of the Marquisate, Earldom and Lordship of Huntly. I put the matter in this way because it is clear that no ques-tions of credibility arose at the proof and that the issues in this case are to be decided on the terms of the various deeds and statutory enactments concerned, the proof being materially confined to a conducted tour of the former. Accordingly, the Lord Ordinary was at no advantage compared with this court so far as consid-ering the matters in issue are concerned. The first point in issue requires to be determined upon construction of the relevant deeds, taken along with the Act of 1685 ratifying the Charter of Erection of 21 May 1684. In the result, the Lord Ordinary concluded that he was "quite satisfied" on the material before him that the site conveyed "probably lay" within the Marquisate lands. I do not share any unease there may be about the way in which the Lord Ordinary expresses his conclusion on this matter. It seems to me that, the matter being one of construction, he concludes that the construction which favours the school site being within Marquisate lands is probably right and the construction to the contrary probably wrong. For my part, I find this way of expressing preference for the construction advanced by the pursuer rather than that advanced by the de-fenders quite acceptable. So far as resolution of this first issue is concerned, I agree with the Lord Ordinary's decision. It is accepted on behalf of the defenders that the only basis for any doubt as to the school site be-ing within Marquisate lands arises from the reference to "the mill of Lessmore" in each of the narratives of subjects which are Marquisate and non-Marquisate lands respectively in the Instrument of Sasine of 1850. Inclusion of reference to the mill in this way created, in the submission for the defenders, an ambiguity which was fatal to successful proof by the pursuer that the school site was within Marquisate lands. Whatever the cause of, and any significance of, inclusion of reference to the "mill of Lessmore" in the listed non-Marquisate lands in the 1850 Instrument of Sasine, it does not, in my opinion, create the ambiguity sought for the de-fenders. Reference within the list of Marquisate lands is to "the town and lands of Lessmore with the mains and manor place thereof . . . with the mill of Lessmore", the reference to "mains" involving inclusion of a home farm. In contrast, there is nothing in the reference to the "mill of Lessmore with the mill lands . . ." in the listed non-Marquisate lands to suggest inclusion of any farm. Accordingly, there is positive scope for inclu-sion of the "farm of Milltown of Lesmore" within the listed Marquisate lands but no such scope within the de-scription of non-Marquisate lands. Furthermore, the Act of 1685 ratifying the Charter of Erection of 21 May 1684, referred to in the 1850 Instrument of Sasine, similarly lists Marquisate lands as including, "the town and lands of Lessmore with the mains and manor place thereof . . . with the mill of Lessmore . . .". For the purposes of the point first in issue in this case, this last-mentioned reference clearly supports the pursuer's position. On this issue the pursuer clearly, in my opinion, succeeds.
The second point in issue was whether, if the school site was Marquisate land, the statutory reversion pro-vided for in section 2 of the 1841 Act disappeared upon transference of the school in 1875 to the local School Board in terms of section 38 of the 1872 Act. We have no detailed information before us upon which to carry out any detailed comparison of the operation of a school within the purposes narrated in the 1841 Act on the one hand and the operation of a school by the local School Board under the 1872 Act. It seems clear, however, that a school operated under the 1872 Act, and indeed under later Education Acts, could be, and ordinarily would be, used for purposes materially wider than those defined in the 1841 Act. In particular, education no longer required to be only for "poor persons" and there was radical change in the financing of education. It is, I think, a reasonable assumption that there were many schools established in terms of the 1841 Act which were transferred to School Boards in the years following the passing of the 1872 Act. I also think it a reasonable assumption that it was anticipated that this would happen. Significantly, nothing is said in the 1872 Act as to the intended effect of that Act, if any, upon the reversion provided for in the 1841 Act. I think that the most likely intention in these circumstances was that, in the case of a school transferred to a School Board under the 1872 Act, operation of the reversion would be suspended so long as the school was operated under the 1872 Act and, indeed, under similar succeeding legislation. I do not overlook the fact that circumstances could be envisaged where someone who had donated a school site under the 1841 Act was aggrieved by the effect of this construction. In particular, such a donor might have been only too willing to gift the land for the purposes of the 1841 Act but might have been unwilling to do so for a school to be operated under the 1872 Act. However that may be, I am still of the view that, under the legislation concerned, transfer under the 1872 Act merely had the effect of suspending operation of the right to reversion. Accordingly, I find it unnecessary to explore the consequences of triggering of the right to reversion in 1875 upon transfer of the school under the 1872 Act, although it may be noted in passing that such triggering could be of no avail to the defenders in this case. In any event, with regard to the live point in issue in this case, I am satisfied that the right to reversion was not defeated by the transfer in the present case in 1875 and, accordingly, that the pursuer succeeds on this second issue also. It is, however, important to stress that what was suspended in 1875 was a personal right of the party entitled to reversion to enforce his right of reversion against any chal-lenge to it and to obtain recorded title to the property concerned in the event of the school being closed. In particular, closure of the school would not have the effect of automatically restoring to the granter right of property in the school without further action being taken (Sharp v Thomson 1995 SLT 837).
I find the third issue which requires to be resolved the most difficult to decide. This issue is in whose favour the reversion operates. The contention for the pursuer is that it reverts to the heritable proprietor of the Mar-quisate lands. The contention for the defenders is that it reverts to the farm of Milltown of Lesmore. At the time of the grant in 1858, the granter was, as the pursuer now is for the purposes concerned in this case, the heritable proprietor of the lands and estates of the Marquisate, Earldom and Lordship of Huntly for the time being. In the grant, the school site was described as being part of the farm of Milltown of Lesmore which, for the reasons already stated, I am satisfied was Marquisate land. Both the competing solutions involve the concept of the school site having been carved out of an area of land in the granter's ownership. It may be noted that the leading provisions of section 2 of the 1841 Act involve the prospect of a school site being sold or donated not only where that site is carved out of a larger area of land owned by the granter but also where the site, albeit by statute not exceeding one acre, is free-standing in the sense that the granter owns no land surrounding it. However, when one comes to the terms of the provisos to section 2, that concerning reversion appears to make it clear that what is really envisaged is only the situation where the site is being carved out of a larger area of land in single ownership. This is because the reference to reversion is to immediately re-verting "to and become a portion of the said estate". But for the wording of the provision relating to reversion in section 2 of the 1841 Act, I would have thought it very natural and proper that any reversion ordinarily should be simply to the heir and successors of the granter as heritable proprietor prior to the grant of the school site itself. However, having regard to the wording referred to, and notwithstanding some possible en-couragement towards the conclusion last mentioned from the opinions in Houldsworth v School Board of Cambusnethan, I am inclined to accept that the proper choice in this case lies between the two constructions advanced by the pursuer and defenders respectively . . . It seems to me clear that the governing factor in making the choice concerned has to be the intention of the granter at the time of making the grant, as re-flected in the terms of the grant itself. I find it completely consistent with the terms of the 1841 Act, and in particular section 2 thereof, that it was open to the granter in making a grant under that Act to specify the lands in his ownership in favour of whose heritable proprietor for the time being the reversion should operate. Accordingly, a clear statement of such intent in favour of one or other of the competing constructions would be effective. I do not find in the grant concerned any such clear statement and, accordingly, find the choice which requires to be made a difficult one. The farm concerned was not held under a separate title prior to 1923 but was simply part of the Marquisate lands. That is a factor which, to some extent, militates in favour of the pursuer's position. Additionally, the pursuer founds upon the fact that the granter chose to provide that his heirs and successors in the Marquisate lands were to be among the Trustees. The suggestion is that this indicated an intention by the granter that there be an ongoing connection between the Marquisate lands as such and the school site. I think it relevant to take into account the legislative position of entailed estates at the time when this grant was made and in particular that the grant post-dates the Rutherfurd Act by ten years. As at 1858, there was, on the one hand, developing prospect of alienation of pieces of Marquisate land and yet, on the other hand, a social environment in which the granter could well wish himself and his successors in the Marquisate lands to be among the Trustees effectively controlling the school site and build-ings being provided for the education of the poor in the locality, irrespective of any such alienations affecting land around the school site and notwithstanding that day-to-day management, direction and inspection of the school was left to others. Turning to consideration of the case for reversion to the farm of Milltown of Lesmore, it is said on behalf of the defenders that the terms of the grant support reversion to the farm as such. The school site being specifically described as being part of that farm I accept that the provision in sec-tion 2 of the 1841 Act that the school site on reversion shall "immediately revert to and become a portion of the said estate . . ." does provide some support for the defenders' contention once it is established, as al-ready discussed, that "estate" relates to some area of land. However, given that the school site was also part of the Marquisate lands and that description of it as part of the farm may only have been descriptive of its location, it seems to me that some more substantial support for the defenders' construction is required for it to prevail. Had, for example, the word "again" appeared after the word "become" in the provision ". . . shall . . . revert to and become a portion of the said estate . . .", I would have found the case for the defenders' con-struction materially more potent, because it would then have become possible to relate directly the reference in the grant to the site being "part" of the farm with what would then be statutory reference to becoming again a portion of the said estate. However, having regard to the way in which the third proviso is actually worded, I find myself driven to the conclusion, albeit I regard the point as very narrow indeed, that, on balance, the pursuer's construction is to be preferred.
On the whole matter, I would adhere to the Lord Ordinary's interlocutor and refuse the reclaiming motion.
LORD JOHNSTON: By a Grant and Conveyance dated 22 and recorded in the Division of the General Reg-ister of Sasines for the County of Aberdeenshire on 27, both dates in September 1858, (the 1858 disposition) the Fifth Duke of Richmond and Lennox conveyed a piece of ground "part of the farm of Milltown of Lesmore . . . all lying within the Parish of Rhynie" declaring himself in that deed to be "heritable proprietor of the piece of ground hereinafter disponed" to certain trustees, including himself and his heirs and successors in the en-tailed lands and estates of the Marquisate Earldom and Lordship of Huntly for the purposes of the School Sites Act 1841, ("the 1841 Act"):-
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replied 1 year ago.
"to be applied as a site for a school for poor persons of or in the Parish of Rhynie and for the residence of the teacher or teachers of said school and for no other purpose whatever".
The school was to be under the management and control of the Kirk Session of the established Church of the Parish.
In 1875 subsequent to the passing of the Education (Scotland) Act 1872 and under and in terms of section 38 thereof the Trustees "transferred" the school and its site to the Rhynie Parish School Board, whereafter the school was run as a public school. The first defenders are successors to that Board and in 1963, after the building had been used continuously as a school for the intervening period, the first defenders' predecessors determined, as education authority, that the school should be closed. This was done with the approval of the Secretary of State on 3 September 1963 and that approval was minuted by the Education sub-Committee at their meeting on 5 September 1963.
In 1965 the Education Committee resolved to sell the site of the now redundant school. Missives of sale were entered into dated 15 February and 3 March 1967 between the County Council and the disponee, but no conveyance was made. Subsequently the disponees' executrix sold the subjects to David Robert Thow and the first defenders, at her request, granted a disposition of the subjects to him in 1986. This disposition was dated 23 January and registered in the Division of the General Register of Sasines for the County of Aberdeenshire on 11 March 1986.
In this action the pursuer seeks declarator that he is entitled as heritable proprietor to the subjects in question, deriving his title through a series of writs deduced from the Marquisate Earldom and Lordship of Huntly (the Marquisate); production and reduction of the 1986 disposition to which I have just referred and ejection of the current occupant the second defender from the subjects. After proof the Lord Ordinary upheld these contentions and granted decree in terms of the conclusions. Against this interlocutor both defenders, jointly represented, reclaim.
There are two quite separate background issues that require detailed consideration before the submissions of counsel can be properly addressed.
The first relates to the statutory background, having regard to the fact that the 1858 grant was made under the School Sites Act 1841, making particular reference to that and was an attempt, probably successfully, to follow the form of conveyance described in section 10 of that Act. However the important provision is to be found in section 2, which, reading short, is as follows:
"And be it enacted that any person being seized in fee simple . . . in any manor or lands, or in Scotland being the proprietor in fee simple or under entail, and in possession for the time being, may grant, convey or enfranchise by way of gift, sale or exchange, in fee simple or for a term of years any quantity not exceeding one acre of such land as a site for the school for the education of poor persons or for the residence of the schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge, provided . . . also, that upon the said land so granted as aforesaid, or any part thereof, ceasing to be used for the purposes of this Act mentioned, the same shall thereupon immediately revert to and become a portion of the said estate held in fee simple or otherwise or any manor or land as aforesaid, as fully to all intents and purposes as if this Act had not been passed anything herein contained to the contrary notwithstanding".
Central to the issue in this case is the construction to be put upon the proviso thus stated.
It is to be noted that that Act followed upon an Act of the United Kingdom Parliament to facilitate the conveyance of sites for school rooms viz Act 1836 chapter 70. It also has to be noted that in terms of section 14 of the 1841 Act power was given to the Trustees to sell or exchange the subjects originally conveyed, in their discretion as managers in relation to the running of the school. It also has to be noted that the proviso to section 2 is said to operate when the land ceases to be used for the purposes mentioned in the Act.
The next step in the legislative chain is the Education (Scotland) Act 1872. By section 38 thereof it is enacted:
"With respect to schools now existing or which may hereafter exist in any Parish . . . erected or acquired or maintained or partly maintained with funds derived from contributions or donations whether by the members of a particular church or religious body or not for the purpose of promoting education; be it enacted, that it shall be lawful for the person or persons vested with the title to any such school with the consent of the person or persons having administration of the trusts from which same is held to transfer such school, together with the site thereof, and any land or teacher's house held and use in connection wherewith to the School Board of the Parish . . . in which it is situated, to the end and effect that such school shall thereafter be under the management of such Board as a public school as in the same manner as any public school under this Act, and it shall be lawful for the School Board . . . to accept such transference, and, on the same being made and accepted, the said school, with the site and any land and teacher's house included in the transference, shall be vested in the School Board and the school shall thereafter be deemed to be a public school under this Act and shall be maintained and managed by the School Board and be subject to all the provisions of this Act accordingly . . .".
In respect of this legislation it is to be noted that the transference could be affected by an ordinary disposition or other deed of conveyance by the persons vested with the title, and recorded in the Register of Sasines (section 39). It is also to be noted that as part of section 36 a School Board could discontinue or change the site of any school under its management and sell and dispose of any land and building connected with any school so discontinued or the site of which it is so exchanged. The only other relevant piece of legislation is that to be found originally in section 9 of the Education (Scotland) Act 1969, now in the Education (Scotland) Act 1980 as section 22(2). I refer to this simply for its terms, although certain argument turned upon it. Paraphrasing its terms it can be seen that it provides ways in which a reversionary interest under the proviso to section 2 of the 1841 Act may be either dealt with or discharged. Its importance to the case, if any, is simply that it seems to recognise that as at 1969 reversionary interests under the proviso could still be in existence.
The second and quite separate background matter relates to the history of the Marquisate. It was ratified and erected by an Act of the Scottish Parliament in 1685, in favour of George Duke of Gordon etcetera, of the Marquisate Earldom and Lordship of Huntly. That Act lists a vast number of properties set to fall within the Marquisate and the argument turns to some extent as to what is contained in it. It was obviously intended, apart from erecting the Marquisate, to be a consolidation of the properties to comprise the subjects of the Marquisate.
The next important writ is an Instrument of Sasine dated 1850 at the hand of the then Duke of Richmond and Lennox recorded on 6 November 1850. Much turns on the contents of this deed, being the base step taken in the title by the Duke to claim infeftment in the properties, inter alia, of the Marquisate, although parties agreed that it also contained references and thus infeftment in property beyond the boundaries of the Marquisate.
A number of other deeds were referred to in the evidence. Viz a Crown Charter of Resignation in favour of the Duke of Richmond and Lennox of the Marquisate Earldom and Lordship of Huntly granted in 1861; a Deed of Entail by the then Duke of Richmond, Gordon and Lennox, containing a disposition to Charles Henry Gordon Lennox, recorded on 1 November 1904; two extract decrees of service (12/4 and 12/5 of Process), none of which added anything to the argument, merely being consequent to the Instrument of 1850. The next writ that therefore is of importance is the disposition by the Duke of Richmond, Gordon and Lennox with consents to Garnet E Lambert and another recorded on 15 May 1936. This is effectively a disposal by the then Duke of his Highland lands and indisputably included the properties comprising the Marquisate of Huntly, though also again, indisputably, properties additional to that tenement.
The next writ is a disposition by the executors of the late Garnet E Lambert and another to the pursuer, recorded in the General Register of Sasines for Aberdeen on 8 August 1991, which disposition is of importance and its terms will have to be considered. The dispositive clause in that deed is as follows in relation to the subjects:
"ALL and WHOLE the Marquisate Earldom and Lordship of Huntly so far as the same are situated within (there then follows certain Parishes and pertinents) . . . but without prejudice to the foregoing generalities all the whole lands Earldom and Lordship of Huntly comprehending therein . . . and other as more fully and enumerated and described in the rights and infeftments of the said Marquisate Earldom and Lordship of Huntly being the subjects and other more particularly and generally described to or referred to in (the 1936 disposition hereinbefore referred to)". (My paraphrase).
Consequent upon that deed, by disposition recorded in the General Register of Sasines for Aberdeen on 3 January 1992 the pursuer conveyed to a Dr Teal "ALL and WHOLE the Marquisate Earldom and Lordship of Huntly . . . Finally by disposition recorded in the General Register of Sasines for Aberdeenshire on 6 November 1992 the said Dr Teale disponed back to the pursuer the subjects which now conform to the description in the first conclusion, being those originally conveyed as is narrated by the 1858 disposition, to the 1858 Trustees.
The sum total of this narrative of writs is that the pursuer, both in the first conclusion and by averment, maintains that he is in derivative title of the Marquisate of Huntly to the extent of the reversionary interest in the subjects known as Lesmore School created by the 1841 Act, as conveyed originally to the Trustees by the 1858 disposition, always assuming the subjects were at that time part of the Marquisate and that the reversionary interest has survived the various legal steps to which the subjects have been exposed and operated automatically on the discontinuance of the premises as a school in 1963. That is the essence of the case which the Lord Ordinary has upheld.
Against this background the case, as I see it, poses three questions, as follows:
1. What was the source of the subjects conveyed in the 1858 disposition in respect of whether they comprise part of the Marquisate lands?
2. Did the reversionary interest, undoubtedly obtained by that grant in terms of the 1841 Act section 2, survive the transference to the Education Board in 1875?
3. Whom, assuming the reversion was triggered when the school was discontinued as between the owner ofthe Marquisate and the current owner of the farm from which the lands were derived, should the reversion now favour?
In respect of each of these questions counsel made detailed and extensive submissions and I intend to deal with each question in turn.
The source of the subjects in the 1858 disposition.
The essential submission of the defenders was that at best for them an examination of the 1850 Instrument of Sasine, firstly, contained no express reference to the farm Milltown of Lesmore, secondly, in so far as Lesmore was referred to while there was one reference in the deed at page 109 to the town and lands of Lesmore, there was another reference at page 128 to the Mill of Lesmore and the significance of this, counsel submitted, was that by the time the second reference occurred the instrument was discussing lands no longer part of the Marquisate, although still within the ownership of the Duke. However, pausing in the narrative of the argument I note that that reference encompasses an express reference to the Mill as part of the Barony of Strathbogie. This double reference in the absence of any express reference to the farm itself was said to be determinative of the fact that the pursuer had failed to establish that as a matter of construction of the evidence, ie the writs, the farm Milltown of Lesmore was in 1858 part of the Marquisate. In any event it was maintained it was ambiguous, requiring extrinsic evidence to settle the problem, none of which was either offered or available. Counsel for pursuer's position was that by definition the phrase "town and lands" was under reference to the word "town", and the Scottish dictionary definition thereof, habile to mean farm and this was a separate farm from the expression encompassed in the word "mains" which also occurred at the same part of the deed at page 109 and must be regarded as the subsequent home farm of Mains of Lesmore. If, so ran the argument, "mains" meant the home farm, separate from Milltown of Lesmore, "town" must refer to Milltown of Lesmore. Thus he said there was an express inclusion within the Marquisate lands of the relevant farm. He maintained that the further reference in the deed to the Mill of Lesmore was either tautologous, a mistake or at worst a double infeftment which did not detract from his argument, there was therefore no ambiguity and the matter was clear upon the evidence, ie the writs.
The Lord Ordinary determined this question in the favour of the pursuer but upon the basis of probability, a word in this context which causes me some concern. It seems to me that the court must seek, by reference to the evidence of the writs, a determinative answer to the question as a matter of construction which should not involve probabilities. This can be, in my opinion, achieved by detailed examination of the history and content of both the Act of Parliament of 1685 and the Instrument of Sasine of 1850.
As a matter of history it is clear that at least the Barony of Huntly had been in existence for many years prior to 1684. In that year, on the face of the Act of 1685, the then Duke was granted a charter by the Monarch confirming all and "haill The Marquifsat Earldome and Lordship of Huntly". The 1685 Act was ratifying this charter and accordingly would simply repeat, and obviously did so, the contents of it with regard to the portfolio of properties within the Marquisate then being erected as a matter of law. The Act of Parliament of 1685 accordingly provides statutory evidence of the contents of the Marquisate under reference to an enormous listof properties.
Two further observations have to be made. Immediately past the preamble the statute narrates at line 15 "all and haill the Lands and Earldome of Huntlie of old called the Lordfhip of Strathbogie". Thus the lands of the Earldom of Huntlie and the Lordship of Strathbogie are equiparated, a point not without significance when construing the 1850 instrument. The second and more important point to be made is to be found by examination of a passage towards the end of the statute on page 507 of the print at the top of the left hand column which reads:
"An sicklie the difsolving of the saids land Marquifsat Earldome Lordfhips Barronys Burghs or Barronys Weikly mercats free faires Heretable offices Jurifdictions of Bailliary and Conftabulary Advocations Donations And Rights of patronage from all other Marquifsats Earldomes Lordships Barronys and Burghs of Barrony and Regality To which they were formerly united and whereof they were parts and pertinents And the new uniting and creating and Incorporating the samen In ane haile free Marquifsat Lordship and Regality to be called now and in all time coming the Marquifsat Lordship and Regality of Huntlie".
The importance of this is that it indicates quite clearly that all the properties listed between the preamble and initial declaration in the Act and the final declaration are obviously and clearly part of the Marquisate.
If one then progresses to the body of the Act at page 500 at the bottom of the left hand column one finds the reference:
"The town and Lands of Lefsmoir with the mayns and maner place therof Belhinnie and Kirktoun of Efsie with the Advocation Donation and right of patronage of the paroch Kirk and parochin of Elfsie Blackmiddens Bruntland Stanebarn Glack with the milne of Lefsmor".
This passage is of high significance because it is effectively re-written in the Instrument of Sasine of 1850 at page 109, viz.
"the town and lands of Lessmore with the mains and manor place thereof . . . with the Mill of Lessmore . . .".
The 1850 Instrument appears to have been the reaffirmation by the then Duke for purposes of infeftment of all his properties since, as a matter of construction, while it opens with a description of all the Baronies comprising the Marquisate of Huntly it moves on to other properties to a point conveniently found on page 123 of the appendix where approximately a third of the way down it states:
"All which lands Marquisate Earldom and Baronies and others foresaid with certain other lands and heritages were erected and incorporated into one free Marquisate and Lordship of Huntly conform to charter of erection dated the twenty first day of May sixteen hundred and eighty four in favour of George then Marquis of Huntly great grandfather of the said Alexander Duke of Gordon".
Thereafter there can be no doubt that what was contained of the remains of the deed are other properties comprising Baronies not included in the Marquisate. However, the passage to which I have referred at page 109 of the Appendix, under reference to the Act of Parliament ratifying the charter plainly falls firmly within it and that, in my opinion, determines the matter. The subsequent reference to the Mill of Lesmore and the other properties immediately around it is probably a mistake, but if, at the end of the day, it results in there being an ambiguity as between what is contained on page 109 and the passage founded on by the defenders on page 128 that ambiguity, in my opinion, is plainly resolved by a detailed examination of the ratification of the charter in the Act of Parliament of 1685. In particular, the specific reference at p 128 to the Barony of Strathbogie as encompassing the Mill of Lesmore is determinative since the 1685 Act expressly includes that Barony in the Marquisate lands, as I have already indicated. I am therefore firmly of the opinion that at the time of the disposition of 1858 from the farm Milltown of Lesmore that land in question lay with in the Marquisate. I therefore agree with the conclusion of the Lord Ordinary but I do not express it as a matter of probability but rather as a matter of construction.
While that disposes of the central issue to the main question there are two subsidiary points. In the first place for the pursuer to succeed he must still trace his right to the present subjects through the Marquisate but this, in my view, he does without difficulty upon an examination of the 1936 disposition to the Lamberts and the 1991 disposition in his favour from their executors. It plainly, on the most briefest of examination, carries the Marquisate. That in turn was conveyed to Dr Teal by the pursuer and back to him thus giving him the right, always assuming the lands are in the Marquisate, to claim any pertinents to those lands at the present time. The other subsidiary issue related to whether or not, having regard to the terms of both the Lamberts' disposition and the 1991 disposition, which could, it was argued, be construed as to cover everything belonging to the Gordon family in 1936 thus making the question of whether the farm of Milltown of Lesmore was part of the Marquisate or not academic. But I consider this falls to be ignored as a question in the case having regard to the pursuer's pleading where he specifically avers, on page 7 of the record, that the land formed part of a Marquisate. He has, therefore, no case in my opinion to make that he is entitled to a remedy by reason of being a successor to the whole of the Gordon estates such as were remaining in 1936.
The question of whether the reversion was defeated in 1875.
It is common ground, and rightly so in my opinion, that an examination of the 1858 grant on the face of it makes it clear that what was being conveyed was a plot of ground under and in terms of section 2 of the 1841 Act following the conveyancing form or style set out in section 10 of that Act. While that style makes no reference to the proviso relating to reversion parties were agreed that as a matter of law the reversion came into existence when the grant was registered. The issue, therefore, is whether it was affected by the subsequent transfer of the school thus created subsequent to 1868 to the Education Board in 1875 and this point was hotly contested at the bar. For the defenders it was argued that, particularly having regard to section 14 of the 1841 Act which confers a power of sale on the trustees concerned with the school created under that Act, the reversionary interest could not run with the lands and must therefore be regarded as a power given to the Trustees exercisable on discontinuance. Emphasis was placed on the fact that what had been created originally under the 1841 Act as a school for the poor became a public school under the 1875 Act and thus the objects of the original trusts failed. It is worth observing in passing that the consequence of this argument is the rather startling result that the reversion would be triggered at that time and, other things being equal, still running thus defeating rather than supporting the defenders' position. However the more substantial argument was that having regard to the existence of the new Board and the enlarged powers given to the Trustees under the 1872 Act, not least in relation to section 36, the original right of reversion became redundant or at worst obliterated. The scheme of the 1872 Act was such that by section 38 the Trustees were empowered but not required to hand over the management of the school and the site, but if they did so the reversion which until then had been personal to the Duke disappeared because another party, other than his disponee, were in occupation and management of the site. It followed, said counsel, that it was always in the right of the Trustees to defeat the right there personal to the Duke in the reversion by a transfer and an enlargement of the powers of the transferee. Counsel had to face up to the provisions of section 22(2) of the 1980 Act but maintained that Parliament was either legislating in a vacuum or under a misapprehension that these interests still persist because he had to accept that if he was correct any transference by Trustees running a school for the poor to an Education Board under the 1872 Act would be bound to defeat any existing reversionary interest in the subjects or site of the school. It was clear from section 36 that there was a power of the School Board to dispose without protecting any reversionary interest and accordingly the very existence of that power, so ran the argument, defeated the existence of the interest.
Counsel for the pursuer argued, obviously, for the retention of the reversionary interest notwithstanding the transfer. The enlarging, he said, or the alteration in the powers given to the School Board did not detract from the original Trust, nor was it restricted to a school for the poor but applied to any school, particularly having regard to the fact that the terms of the 1872 Act section 38 precisely envisaged a poor school becoming a public school. Counsel founded strongly on the existence of now section 22(2) of the 1980 Act as militating against any suggestion that there was an automatic defeat of reversionary interests under the 1841 Act when any transfer under the 1872 Act took place. There was a presumption against Parliament legislating in a vacuum. He recognised that where a disposition got on to the record under section 39 there could be a competing title between the person infeft of the reversionary interest, dormant so long as the school was continuing, and the person infeft of the disposition which would presumably be the School Board. A fortiori if the School Board sold the subjects, whether as heritable proprietor or as uninfeft proprietor, to a third party who then registered his or her title on the Register the same situation could exist and if after the expiry of 40 years the school was still continuing that could defeat the reversionary interest, but he simply described that as an oddity arising inevitably from the inadequacies of the drafting of section 2 of the 1841 Act. Even if there was a power available to defeat the reversionary interest if it was not exercised it was not defeated. Accordingly it became exercisable when the school closed in 1963 and remained so at the present time.
Both counsel referred to two cases referred to by the Lord Ordinary namely Marchant v Onslow  2 All ER 707,  3 WLR 607 and AG v Shadwell 1910 1 Ch 92. In the former case there was a competition between two persons as to whom the reversion should favour which bears on the third question in this case rather than the one presently under consideration. The latter case was more in point, being concerned with whether or not a change of purpose in the school in question defeated its trust and requires more detailed consideration.
I mean no offence to counsel in summarising their careful submissions in such short compass but the point is easy to state but difficult to resolve. In my opinion the appropriate point for the start of the analysis is an examination of what is achieved by a transfer of a site for the purposes of a school under section 2 of the 1841 Act putting aside for the moment whether anything turns in this case on the fact that it should be a school for the poor. In my opinion what is created is a Trust in favour of the Trustees for the relevant purposes burdened with the reversionary interests of the Truster and subject to the other powers conferred within the Act. I refer particularly to section 14 in respect of which it was accepted at the bar that a disposal by the Trustees under that section would defeat the reversion. However, it is worth pointing out that so long as the Duke or his heirs and successors to the Marquisate was a Trustee he could presumably protect his interests by refusing his consent to such a transfer or sale unless it was protected at common law within the relevant conveyance. If it was being sold for purposes other than a school he could presumably prevent it completely. All of this, however, deals with the theoretical position between 1858 and 1872.
In my opinion the effect of the 1872 Act is to widen the powers of the Trustees under the existing Trust and enable them, under section 38 if they so wish, to transfer both the management and the site of the school into the hands of the School Board. A preliminary question arises, viz having regard to the terms of section 38 whether the cessation of the school as purely a school for the poor, in the sense that it was now a public school, triggers the reversion. In my opinion it did not since this is merely an example of the Trustees' powers previously limited to exercising the purposes required of a school for the poor being enlarged, and it is important to concentrate on the word "lawful". If they so wish under section 38, they are empowered to turn the school into a public school, but they are not obliged so to do. Parliament has accordingly widened their powers but the existing Trust, subject to existing burdens including the reversionary interest, continues. Having regard to the Joint Minute that is all that happened in this case and that seems to me to be sufficient to dispose of this question since the passage of time cannot affect the reversionary interest which cannot be cut off by negative prescription being an interest in land. It is however useful to test the matter against two hypothetical situations, one with regard to the consequences to the reversion of a disposition being recorded under and in terms of section 39, and secondly a disposal by the School Board to a third party under its powers in section 36 which raises two questions.
In my opinion, with regard to section 39, what is being considered is the means by which the transference to the School Board may be effected with regard to heritable property, particularly in a situation where the Trustees may not be unanimous. It is not without significance that the majority may consent and this seems to me to be doing no more than facilitate and perfect the exercise of the power granted to the Trustees under section 38. Accordingly, the recording in the disposition under section 39 following upon the exercise of the powers under section 38 making the Education Board infeft does not, in my opinion, reflect upon in any way the existence or the continuing existence of the reversionary interest. Any subsequent disponee of the Education Board infeft in the property upon examining the Register would observe that the title to the Education Board stems from Trustees operating under a Trust created under the 1841 Act and are therefore immediately on guard on the face of the Register that there could be a reversionary interest. Equally, if the Education Board infeft in the property close the school the reversion operates and it would be an odd situation if the mere regularising of the position of the transfer between the Trustees and the School Board in itself destroyed the reversionary interest not destroyed by the transfer itself.
The position in relation to section 36 may be different since there is a general power given to the School Board as Trustees and successors to the previous Trustees to dispose of the property. If they dispose of it upon closure as infeft proprietors the reversion would be defeated in the same way as under section 14 of the 1841 Act. If they dispose of it for continuation purposes to another school authority so as to keep the reversionary interest dormant the Register is declaring of the position and no prejudice can be achieved to any person such as a potential heritable creditor.
The final situation is where, as here, the School Board's successors was never infeft but did eventually, after the closure of the school in 1963, dispone the property to the second defender's predecessor by the 1986 disposition. The proper analysis of this legal situation, in my opinion, is that that disposition is a non domino but capable of being prescribed upon by possession. Such possession is, however, interruptable during the 10 year period by the beneficiary of the reversionary interest which was triggered by the closure of the school and still existing at that time. That is precisely what the pursuer seeks to do in this action and confirms my view of the whole picture that the 1872 transfer did not in fact, and could not in law, defeat the reversionary interest per se. It will be open to the beneficiary of the reversionary interest to interrupt any prescription running on an anon domino disposition at any time during the relevant period which during the last century would have been the 40 years period provided his right had been triggered by the closure of the school.
For these reasons, rather more elaborately stated than the Lord Ordinary who I am sure had lesser material before him, I agree with him and accept his conclusion.
Finally on this aspect of the case I pause to observe that if I am wrong in respect that either a disposition recorded under section 39 or a disposition effected under section 36 can destroy the reversionary interest of the original granter, neither has happened in this case and I do not consider that the existence of a power can destroy an interest in land only because it exists inter alia to have the means to do so. The power must be exercised to achieve the result. The first time it was exercised in this case was in 1986 and the pursuer has moved within the relevant prescriptive period both to interrupt judicially the running of prescription and to reduce that disposition.
Finally I should add that I do not consider the case of Shadwell to add much to the argument. The rubric is far from clear in the sense of whether it represented what the learned judge stated. If the case is an example of the failure of a particular Trust upon the purposes for which it was created, albeit under powers contained in an Act of Parliament, I would have some doubts that the Trust would necessarily fail if the proposed purpose for its continuance was still within the umbrella of powers or purposes under the Act. However, upon examination of the judgment it seems reasonably clear that the learned judge held that the proposed use of the premises as a Sunday School did not fall within the terms of the Act and thus the Trust did fail. The case is therefore special to its own facts and I derive no assistance from it in the present case.
The competition between the claimants to the reversionary interest.
Again this problem is easy to state but difficult to resolve. The competitors are respectively the successors to the Marquisate, which for all relevant purposes has now been established to be the pursuer, or the successors in title to the farm of Milltown of Lesmore, which for ought seen would be the second defender the identification of the latter is immaterial. What matters to the pursuer's claim is that it must be an interest effeiring to the Marquisate.
The defenders' argument was concisely stated but powerful. It turned entirely upon a construction of the 1858 grant under reference to the terms of section 2 of the 1841 Act. In the 1858 deed the Duke simply described himself as "the heritable proprietor of the piece of ground hereinafter disponed" and although, in disponing to himself as trustee, he included his heirs and successors at law to the Marquisate the argument said that that was nothing to the point. He was merely disponing as the heritable proprietor of part of a farm and the limit of the heriditament being thus severed was the farm itself. The matter could have been put beyond doubt said counsel if, in the dispositive part of the deed, the Duke had described himself as being infeft in the Marquisate or the Barony or the like of Huntly or even if he had described the lands as being a portion of same. Merely to describe himself as the heritable proprietor of the land he was disposing thus left a clear picture that he was not intending to do any more than sever a part of farm to which it should revert in the event of the reversion being purified.
On the other hand counsel for the pursuer pointed to the entire basis upon which the Duke held title, namely, under the Marquisate, to the fact that the farm itself had no separate entity or existence within either the Barony of Huntly or the Marquisate more generally and that there was accordingly no basis at all for attaching any significance to the words "part of the farm of Milltown of Lesmore".
There is little doubt that in this respect the drafting of section 2 of the 1841 Act leaves much to be desired particularly with reference to Scotland. Looking at the matter across the board it would appear that what is contemplated is land or lands out of which a portion, not more than an acre, shall be conveyed for the purposes provided and that in terms of the proviso the reversion shall be to "said estate" which is the only time that word appears. At first glance I was impressed by the notion that this contemplated something in itself but on reflection I consider that would be the wrong approach. In my construction the section is doing no more than designating the land upon the operation of the reversion to its original source and therefore it is necessary to determine what that is.
In this situation in the case of Houldsworth & Others v The School Board of Cambusnethan 1904 7 F 291, it is worth noting in passing that the Lord Ordinary, Lord Kyllachy, at page 296 had no difficulty with preserving what he called the irritancy, which I call the reversion, in respect of section 14 of the 1841 Act until any power under that section was exercised. However more importantly for the point at issue the Inner House, and particularly Lord Trayner at page 302, having accepted that the Trust had failed in the sense that the school had closed states:
"In these circumstances the statute distinctly provides that the lands so granted shall revert to the estate from which they were taken".
Lord Moncreiff at page 304 was of the same opinion. Of course it is true that the use of the word "estate" begs the question, and at the end of the day this matter has to be decided by trying to determine what was in the mind of the granter as to what part of his property was he making the derogation if his property was wider than the area actually being disponed. Thus the distinction between a free-standing house and a wider estate recognised in Marchant, to which I have already referred, becomes relevant, although the facts of the case are immaterial to the present.
I have no difficulty with the proposition that if what was conveyed was, in the vicinity in question, the sole heritable asset of the donor or granter then the reversion follows whoever is his or her heir. Where, however, it forms part of a larger area one is looking for the definition of that area. Where, in my opinion, the area forms part of a Barony, albeit it is described as part of a farm which happens to be within that Barony, the granter is derogating from the Barony and not from the farm in making the grant. If the farm had been an identifiable heritable unit in the ownership of one or more persons as a free-standing unit I again would have had no difficulty in determining that it should revert to the heirs and successors of those persons. Where, however, the unit is the Barony which in turn is part of the Marquisate I am in no doubt that when the Duke made the grant in 1858 he was doing so as Baron from his Barony. It is therefore to his Barony and the successors in title to it that the reversion must operate.
For all these reasons I am of the opinion that the Lord Ordinary came to the correct conclusion and I would refuse the reclaiming motion.
Reclaiming motion refused
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replied 1 year ago.
In error I asked you for the case twice and paid for it twice.
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Hamilton v Grampian Regional Council ,OH!Lord Clyde ,12 Jan 1995 est 24 pages
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