replied 2 years 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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