. Co. v. Jamieson

14, 1899

irrelevant, the present note should be dismissed."

The Lord Ordinary (KINCAIRNEY) allowed both parties a proof of their averments. At the proof the complainers produced the Barrhead Railway Land Plan and an Ordnance Survey District Plan prepared in 1858, and the respondent produced his disposition.

Thereafter he pronounced the following interlocutor:-"Finds (1) That the respondent has produced a disposition in his favour which prima facie includes the land now in dispute, on which the complainers have erected a fence; (2) that the complainers have failed to instruct any right to said land, or any right to erect a fence thereon: Therefore repels the pleas-in-law for the complainers: Refuses the prayer of the note, and decerns."

Note. After the narrative above quoted] -"The proof does not, in my opinion, disclose any adequate motive for raising this action. I confess I do not see any important use to which the complainers can put the strip of ground in dispute; but the parties have thought proper to lead a long proof, and the case has been fought with great anxiety and keenness. At first it appeared to be somewhat complicated, but when the proof and productions are carefully examined the apparent difficulty disappears. The proof has been to a large extent about possession, and I think it is necessarily inconclusive for the reason that little or no use of the strip could be made by either party. It really comes to little more than this, that there has been about as much use and possession by the one party as by the other. I do not intend to examine it, because, in my view, the question does not depend on possession. Each party has also led evidence of the existence of a fence or boundary which they say defines their properties. The evidence of the complainers relates to a sleeper fence which they say stood in former times on the line on which they have placed their present fence; and the evidence for the respondent relates to a dry stone dyke on or near the line on which he says that he placed his fence. But I do not think that the question as to these boundaries is of primary consequence either.

"The first question is as to the respondent's title. That stands on a disposition by the trustees for the Nitshill and Lesmahagow Coal Company, registered in the General Register of Sasines 15th February 1882. By this deed certain portions of ground are disponed, and among them a piece of ground at Nitshill, laid down on a feuing plan dated 29th July 1840, extending to more than six acres, as therein specially mentioned and described. From this disposition there is excepted a piece of ground sold to the Glasgow, Barrhead, and Neilston Direct Railway Company for the purpose of a branch from their main line to the Victoria pit, and now occupied by said branch line.' What I understand to be contended by the complainers is that the land in question is within this exception. If it is not, it is within the disposi

VOL. XXXVII.

tion to the respondent; and it falls on the complainers to prove that it is within the exception. The disposition admittedly covers the Railway Row of cottages.

"The precise manner in which this exception is expressed deserves particular attention, and the question is, What is its true construction? What is excepted is not land disponed to the Railway Company, but land sold-and in fact it has never been disponed-and it is not said to be possessed by the Railway Company, but to be occupied by the railway. It is to be assumed that both parties had a clear idea about the land they were selling and buying. It was certainly not intended to dispone lands the exact limits of which could not be ascertained without a proof of possession, nor lands which could not be defined without an examination of the private plans of the Railway Company, but land which could be definitely and precisely ascertained by the visible occupation of it. It was the land which could be seen to be occupied by. the railway. It is a description as precise as an exception of land occupied by a road would have been. One is not referred to possession by the Railway Company nor to their plans, but only to occupation by the railway in 1882. I understand the complainers to contend that by the words the lands sold to the Railway Company the burden was thrown on the respondent of ascertaining what lands the company had purchased, although they had not got a disposition, and referred to the plans of the company as shewing these lands. I do not think that any such reference to the plans of the company can be legitimately or competently introduced into the disposition, much less exchanged for the actual reference to occupation. The first question therefore is, What was the land occupied by the railway in 1882? .

[After referring to the evidence his Lordship proceeded] "There was therefore at that date nothing to indicate the property of the Railway Company or occupation by it beyond the ground occupied by the rails, the roadway, and the slopes of the cutting, and it appears to me that the space between the ridges of the two slopes, and nothing beyond that, answers to the description of 'ground occupied by the branch railway in 1882.' That is the march claimed by the respondent, and I am of opinion that it corresponds with his title. It is not a defective title, and does not require to be fortified by prescriptive possession. No reference was made on either side to the feuing-plan mentioned in the respondent's disposition, from which I infer that no assistance on either side can be got from it, probably because the Victoria Branch Railway was not in existence at its date (1840).

"The complainers, however, contend, that the property acquired by them extended beyond the boundary, which the respondent concedes, to the line on which they have erected their fence, being, as they contend, the line of the old sleeper fence. I understand that the complainers put their case alternatively. They say that they can show a good right to the land, or

NO. V.

'If the complainers had had a disposition, a case of competing titles might have arisen, but what is certain is that the complainers have no disposition under the Lands Clauses Act or otherwise, and no infeftment. If they bought the land, they neglected to make up a title to it, and the respondent maintains that that is conclusive against their claim, and that no prescriptive possession, however long or clear, is of any avail without a feudalised title.

"The complainers' argument on this point-which was, perhaps, rather more ingenious than intelligible-was, I think, of this nature. It was argued that when the Victoria Branch was formed, the strip of ground was within their limits of deviation, which is no doubt true, and true also of the cottages. That shows that the Barrhead Railway Company might have acquired the strip of ground, but not that they did acquire it.

"Then the complainers proved from excerpts from their books that in or about 1848 the Barrhead Company purchased land from the Nitshill Company, and paid for it. But these excerpts do not show the position or extent of the land. That, they say, is shown on what they call their land plans, and they refer in particular to a tracing of a plan made between 1855 and 1859, in which their property is shown to be bounded in accordance with their contention. In fact the fence was put up from the plan. Then reference was made to the Glasgow and Barrhead Railway Lease Act 1849, by which the Barrhead Railway, with all the property and effects of the Railway Company, was leased for 999 years by the Caledonian Railway Company, and to the Caledonian and Glasgow and South Western Railways (Kilmarnock Joint Line) Act 1869, whereby (sec. 4) all the estates, property, rights, privileges, powers, and authorities held by the Caledonian Railway Company in connection with the Barrhead Railway were vested in the two companies jointly. It was maintained, as I understood, that the combined effect of the plans and the Act of 1869 was to confer on the plans a sort of statutory imprimatur, and on the complainers what was called a parliamentary or statutory title to the lands laid down on the plans. I am unable to adopt this argument, and am not aware of any legal principle on which such an equivalent for a disposition and sasine can be supported.

"Alternatively, it was maintained that these plans should be held to interpret the disposition to the defender in 1882, and to show that the lands sold to the Railway Company, and hereby excepted, were the lands shown on the complainers' plans. I am unable, as already indicated, to adopt that view either, or to hold the phrase 'occupied by the railway,' as equivalent to 'laid down on the railway company's plans.' The complainers referred to The North British Railway Company v. Hutton, Feb. 19, 1896, 23 R. 522, in which it was held that a party could not prescribe a right to a portion of land expressly excepted from his

14,

title. It was a case in reference to the effect of a bounding charter defined by a reference to a previous disposition, in which the lands were described by measurement and by an annexed plan, and it might have had some bearing had it been possible to hold that the disposition to the respondent bore reference to the complainers' plans, but as that is not so the case appears to be inapplicable.

"Neither does the case of Aitkens v. Rawyards Colliery Company, December 19, 1894, 23 R. 201, seem to me to apply. It was referred to as affording an illustration of a statutory title to lands without disposition or infeftment, which may of course be if the statute is sufficiently explicit. But I think there is nothing of that kind in the statutes referred to in this case.

"I think the complainers are truly in the position of asserting a right to lands without a written title, and cannot succeed either by force of direct right or by reason of the exception in the respondent's title.

"The complainers maintain that their right is completed by possession. If they could put their case so high as to be able to say that in 1882 their possession was so clear as to warrant the view that it might be held that the ground so possessed was occupied by the railway, there might have been room for argument, but short of that I think the complainers' reference to possession irrelevant for want of a written title. . .

"I am therefore of opinion on the whole case that the complainers have failed to show that their fence was erected on their own lands, and also that the respondent has instructed a sufficient title to the strip of land in dispute.

"It was argued for the respondent that the complainers could not in any view, and whatever they proved, have succeeded in this case; that at the very best their right was so obscure that it was necessary to clear it by a declarator, and that a suspension and interdict was wholly incompetent. In support of this contention he referred to Mackay's Practice, 462, and to Cruickshank v. Irving, December 23, 1854, 17 D. 286, in which an interdict was refused because of the confused state of the complainers' title. In the view I have taken of the respondent's title I do not require to decide this point, but I doubt whether any general question of law is decided by that case, and I should hesitate to say that the complainers could not competently protect their fence by an interdict even although they failed in establishing their own title if they could have shown that the respondent had not a title.

"But as I hold that the complainers have failed in displacing the respondent's prima facie title, and also failed in establishing their own, the prayer of the note must be refused."

The complainers reclaimed.

At advising

LORD TRAYNER-The complainers in this case claim to be the owners of a small strip of ground which adjoins their railway. On it they have erected a fence, which they apprehend the respondent will remove, and

they seek to have him interdicted from doing so. The respondent maintains that the strip of ground is his property, and that the complainers in erecting the fence in question have been guilty of an act of trespass. On considering the proof led by the parties in support of their several contentions the Lord Ordinary has decided in favour of the respondent, and I think he is right. The rule of our law is, "No sasine, no land." The complainers have no sasine in the strip of ground in question, nor have they any conveyance or title of any kind upon which sasine could follow. The only evidence on which the complainers rely as supporting their claim to the piece of land in question is a land plan prepared by themselves in or about the year 1857, in conformity with which they say they have had exclusive possession for much longer than the prescriptive period. But the land-plan is no title, and exclusive possession will not prove or establish a right unless it follows upon a habile title. The complainers do not possess at all events, they neither allege nor produce any such_title. Further, I am of opinion with the Lord Ordinary that the complainers have failed to prove that they have had exclusive possession. On the other hand, the respondent has a title, and is infeft therein, which covers or may cover the piece of ground in question. From the conveyance in favour of the respondent there is excepted "a piece of ground sold to" the complainers' authors. What that piece of ground is, what its situation, or what its extent is not specified, further than that it is "now occupied by said branch line." The branch line does not now and has never "occupied " the piece of ground in question. The complainers, in my view, have entirely failed to identify the piece of ground in question as the piece of ground, or part of that piece of ground, excepted from respondent's conveyance. The result is that the complainers have failed to show that they have any right to erect their fence where they have erected it, and that the respondent cannot be interdicted from removing a fence unwarrantably erected on his property.

The complainers cannot obtain a possessory judgment in their favour. It is they who have recently inverted the possession, and the fence which the complainers seek to have protected has only existed for some months, and not for seven years.

The LORD JUSTICE - CLERK and LORD MONCREIFF Concurred.

LORD YOUNG was absent.

The Court adhered to the Lord Ordinary's interlocutor.

Counsel for the Complainers - Cooper. Agents-Hope, Todd, & Kirk, W.S.

Counsel for the Respondent - Dundas, Q.C.-Craigie. Agents-George Inglis & Orr, S.S.C.

Thursday, November 9.

FIRST DIVISION.

DOUGLAS AND OTHERS (MORTON'S TRUSTEES) v. THE AGED CHRIS. TIAN FRIEND SOCIETY OF SCOTLAND.

Contract Promise of Subscriptions to Charity-Liability of RepresentativesOffer and Acceptance - Jus quæsitum tertio.

M wrote to a member of a committee for the formation of a charitable society offering, if a society was formed to answer a description given by him, and on certain conditions as to details, to subscribe £1000, payable in ten an. nual subscriptions of £100. The society was formed, and M's conditions complied with. After the formation of the society M wrote to the secretary offering to become "personally responsible for the pensions of fifty life pensioners of £6 each," on certain conditions. This offer was accepted and its conditions complied with, and a pension scheme was started, which was subsequently extended by further offers on M's part. M paid £100 annually to the society, and also the funds necessary for the payment of the pensions granted, until his death, when two of the annual subscriptions of £100 remained unpaid. In a special case presented by M's trustees and the society, held that the trustees were bound to pay the remaining subscriptions of £100, and such sums annually as were necessary for the payment of pensions to pensioners elected prior to M's death.

Observed that the offer of ten subscriptions of £100 and its acceptance constituted a contract containing an express stipulation in favour of a third party-the society-and an agreement between the parties to the contract that that stipulation should be performed with the third party, who consequently had a right to adopt the contract and sue upon it.

This was a special case presented by the trustees of the late Mr John Thomas Morton, first parties, and the office-bearers of the Aged Christian Friend Society of Scotland, second parties, in the following circumstances: Mr Morton, who died in September 1897, took a prominent part in the formation of the Aged Christian Friend Society, which was established in 1889. By letters written before the Society was established to the Rev. Mr Lowe, a member of a provisional committee sitting in Edinburgh which promoted the Society, Mr Morton offered, on certain conditions relative to the formation and establishment of the Society, to subscribe to its funds a sum of £1000, payable in ten annual subscriptions of £100 each. This offer was accepted by the committee, and the Society was formed with Mr Mor

Ors. (Morton's

ton's approval, and so as to satisfy the conditions of his offer; and Mr Morton subscribed £100 annually to the Society up to the time of his death in 1897. At that time two of the ten subscriptions of £100 each offered by him remained unpaid.

After the Society was established, Mr Morton wrote to the secretary offering to become "personally responsible for the pensions of 50 life-pensioners of £6 each" per annum, subject to certain conditions. This offer also was accepted by the Society, and Mr Morton's conditions were complied with; and Mr Morton paid at the commencement of each year, up to and including the year 1897, the funds necessary for the payment of these pensions to the survivors of the pensioners.

There were further offers by Mr Morton whereby the pension scheme was extended, which were duly accepted by the Society, the particulars of which it is not necessary to enter into for the purposes of this report.

The first question submitted for the judg ment of the Court was-"Are the first parties, as representatives of the said deceased John Thomas Morton, bound to implement in all respects the said several offers of the said John Thomas Morton?" The second question detailed the payments undertaken by Mr Morton.

Argued for the first parties-The offer of £1000 was a mere expression of charitable intention. If the maker of a charitable offer changed his mind, or became unable to implement his offer, no obligation remained, charitable promises being always subject to the conditions of continuance of life and wealth. There was here no rei interventus unequivocally referable to the alleged contract, and no rei interventus short of that was sufficient in the circumstances to set up any obligation-Maddison v. Alderson, June 4, 1883, L.R,, 8 App. Cas. 467.

Mr Morton did not bind himself in a continuing contract to pay the pensions, and his letters with regard to them read as a whole showed that the possible cessation of subscriptions was contemplated by him, particularly the letter of 5th February 1892, in which Mr Morton proposed "That both pensioners and subscribers be informed that the continuance of the pensions would depend upon the continuance of the subscriptions."

Argued for the second parties-With regard to the remaining payments of £100 necessary to complete the £1000 which Mr Morton undertook to pay in ten instalments, his offer of these payments was conditional, his conditions had been implemented by the Society, and the offer had been acted upon; though that offer was not tested or holograph, it was binding, as there was sufficiently substantial rei interventus in the existence of the Society to supply the place of these formalities. The offer and acceptance constituted a contract whereby Mr Morton undertook to pay certain sums, and the committee undertook to form a society, and the eight payments which had been made by Mr Morton showed that he regarded the Society's side of the contract as implemented, and

9,

the two remaining payments were a debt due from his estate. With regard to the various pension schemes, Mr Morton had expressed his intention to become " "personally responsible." The lives of the pensioners might have been entirely altered, they might have lost other benefits owing to their being in receipt of these pensions, and the first parties were bound to continue the payments necessary for them in fulfilment of the obligation expressly undertaken by Mr Morton.

At advising

LORD KINNEAR

-

The questions in this case are of some novelty, but they depend upon principles which are perfectly simple in themselves and are well established. The late Mr Morton of Rosemount, who appears to have been a generous and benevolent person, undertook to pay certain sums of money to a charitable Society called the Aged Christian Friend Society of Scotland, and duly performed his promises so long as he lived. But he died before they had been completely performed, and the question is, whether his representatives are now under obligation to do what he would certainly have done himself if he had been still in life. That appears to me to be a mere question of construction of the documents in which the promises of the deceased are embodied. If a promise is intended, as Mr Bell puts it, as a final engagement, it is binding, but it is not binding if it is a mere expression of a probable intention which the promisor might or might not fulfil. It is a familiar doctrine in the law of Scotland, differing in that respect from the law of England, that an obligation is binding although it may not proceed on a valuable consideration, or may not be expressed in a solemn form, such as a deed under seal. What is necessary is that the promisor should intend to bind himself by an enforceable obligation, and should express that intention in clear words. Now, in applying this doctrine to the documents before us, I do not see that there can be much doubt as to the meaning and legal offect of the letters which we are required to consider.

In the first of these letters, that of the 27th November 1888, Mr Morton explains the nature of a benevolent scheme which he is desirous to see established, and says to the person to whom he is writing:-"If you saw your way to constitute" such a society as is described “for Scotland, you would do a good work, and I would have much pleasure in assisting the finding of funds to start the society." So far, I think, there is no obligation at all; but then he goes on to describe in some specific detail the nature of the charitable society which he desires to see founded, and then, after inviting his correspondent to form a committee for the purpose of establishing the society, he says "I will be happy to subscribe £100 towards commencing the work when you get another £100 subscribed and a committee formed." This letter is addressed to the Rev. Mr Lowe, who was a member of the provisional committee by whom the Society was afterwards estab

Ors. (Morton's

9,

lished, and who was ultimately a director of the Society. In the second letter Mr Morton observes upon the character of a society which it would appear had been described to him by his correspondent Mr Lowe, and says that the society so described "would be a valuable addition to the Scotch societies, but it is not the kind of Society which I am desirous of helping the formation of," and therefore it is quite clear he had a specific and definite idea in his mind of the kind of society which he wished his correspondent to form; and after explaining the character of the society he himself approves of, he goes on to say-"It is a society which, if properly established and conducted, would stand at the very head and top of all Scotch benevolent societies, and I am willing to increase my offer of help to the establishment of such a society to a subscription of £1000 (one thousand pounds) to be payable in ten annual subscriptions of £100 each, provided a properly constituted committee can be found and a fair amount subscribed in proportion to the above subscription offered by myself." In the last letter of the three, the letter of 16th May 1889, he expresses a quite sufficiently specific opinion as to what would be necessary in order to satisfy his condition that a fair amount should be subscribed in proportion to the amount subscribed by himself.

Now these two first letters appear to me to contain a clear offer which invites acceptance because the offer is made on certain conditions. The writer says - If you will do certain things involving the expenditure of time and trouble as well as money, then I on my part promise to give you a definite sum of money within a definite time. That offer was accepted. It is one of the facts on which the parties are agreed, and which we are bound to take as facts established in this case, that the offer was duly accepted by the provisional committee of this Society, which was formed and established under the countenance and advice, and to the satisfaction of Mr Morton, the offerer. Accordingly Mr Morton, during his life, paid regularly to the said Society eight annual subscriptions of £100 each, the last being made on 5th January 1897, and the case states that two annual subscriptions of £100 each due on 1st January 1898 and 1st January 1899 are still unpaid, and are required to make up the £1000 promised.

The result of these facts, taken in connection with the letters, is that we have in the letters a definite offer determined by acceptance. I do not know that anything more is required in order to make a contract according to the law of Scotland. The question therefore, whether the two remaining sums of £100 each would be enforceable against Mr Morton himself if he were still alive and declining to pay is, I think, not a question of difficulty. There is a clear obligation undertaken by him. The only question theretore is, whether, he having died without performing an obligation which we must assume from the terms of the special case he certainly would have

performed had he lived, it may now be enforced against his representatives. It is a general rule that a personal obligation transmits against the personal representatives of the obligator, and although it is perfectly easy to prevent the liability from transmitting by stipulating that the performance shall depend on the survivance of the promisor, there is nothing in Mr Morton's letters to suggest any such limitation of his offer. It is not made on condition of his survivance but is absolute and binding in all events.

The only other point that requires consideration in this part of the case is whether the promise to Mr Lowe can be enforced at the instance of the society which was afterwards formed, and which was not a party to the agreement at the time it was made; and I think Mr Balfour was justified in saying that this was a clear instance of our doctrine of jus quæsitum tertio, as that is explained by Lord Wensleydale in the case of Finnie v. The Glasgow and SouthWestern Railway Company, August 13, 1857, 20 D. (H.L.) 2. The offer is-If you produce a society answering the description I give you, which may be the creditor in my obligation, then I will pay to that society £1000 in the course of ten years. That is an express stipulation in favour of a third party--that is, the society--definitely described, and it is in effect an agreement between the two parties to the contract that a stipulation shall be performed with that third party; and the rule in such a case is, that though the person in whose favour the stipulation is made is not a party to the agreement, or at the time assenting to it, he may afterwards adopt the agreement in his favour and sue upon it.

The question arising upon the remaining letters appears to me to involve the same considerations, although the letters themselves are not expressed in exactly the same terms. All of these letters were addressed to the Society-that is, to the office-bearers of the Society when constituted-and they contain promises, which it is admitted the Society accepted, to make payments of certain sums for the purpose of providing pensions to be bestowed according to certain defined schemes provided such schemes should be established; and the parties are agreed that the whole of the pension schemes were intended to be, and were in fact, established by the Society. The only question therefore is, whether Mr Morton's promises are mere indications of a benevolent intention or whether they are expressed in the language of obligation; and I think the language of the first of this series of letters-that of 2nd May 1890-is perfectly conclusive of that question, for what Mr Morton there says is "Will you kindly place before the directors of the Aged Christian Friend Society of Scotland the following offer of mine. I shall be happy to be personally responsible for the pensions of fifty life pensioners of £6 (six pounds) each, such pensioners to be elected in accordance with the rules of the Society by the directors at an early date, subject to the following conditions,"-and then he