OPINION

Patrick McDade and Others (Applicants) v Robert Hill and Others (Respondents)

Introduction

[1] This is referral for determination of a question relating to the accuracy of the land register under section 82 of the Land Registration etc (Scotland) Act 2012 (“the 2012 Act”). The applicants are Patrick McDade, Maureen Allan and John Thomas Sexton. They are the grantees of a disposition recorded GRS (Lanark) on 18 January 2002 (“the 2002 disposition”). The granters were the trustees of the late Sir Robert Duncan Sinclair Lockhart acting under a trust disposition and settlement of 13 December 1916. The disposition sought to convey the residue of the Stonehouse estate, the residue of the Cambusnethan estate and certain mineral rights.

[2] Subsequently the same trustees conveyed an area of land comprising 1.53 ha lying to the south-west of Castlehill Road, Wishaw (“the subjects”) to Robert Hill and William Dale Hill by disposition dated 30 April and 16 May 2014 (“the 2014 disposition”). The Keeper accepted this disposition for registration and the land has been registered under title LAN 217245. There has been a change in ownership in that the registered proprietors are now the said Robert Hill and others whom it is unnecessary to detail here. The land was first registered while the Land Registration (Scotland) Act 1979 was in force. The Keeper excluded indemnity since the granters of the 2014 disposition had not granted warrandice.

[3] On 31 January 2016 the applicants notified the Keeper of an alleged inaccuracy in the land register. They stated that they, and not the respondents, were the owners of the land. They now seek the Tribunal to make findings so as to enable the applicants to become registered proprietors on the basis of the 2002 disposition.

Procedure

[4] Although the pleadings refer to Mr Hill and others as “interested parties,” we think it more appropriate in proceedings of this nature to describe them as “respondents.” The Keeper and respondents have lodged Answers. The Tribunal agreed to determine the case on the basis of written submissions. The issue appeared to be one of competition of title without any suggestion of prescriptive possession by either of the parties. The applicants represented themselves in the proceedings. The respondents were represented by Ms Fiona Macgregor of Pinsent Masons LLP. Both parties made detailed written submissions. The Keeper adopted an essentially neutral position but referred to a letter of 25 January 2010 from the Keeper to the applicants’ then agents. The letter stated there was insufficient evidence of title to enable the Keeper to register an application for registration on behalf of one of the applicants and a third party. We are not entirely clear precisely what deed was in question in that registration process, since it was not produced, but it appears to have been a disposition following from the 2002 disposition to the applicants.

Texts referred to

Erskine, Institutes, 2.3.23
Halliday, Conveyancing (2nd ed) Vol 2

Background facts and circumstances

[5] There is a lengthy conveyancing history in this case. Both sets of parties have sought to register interests with the Keeper at different times. Fortunately it is not necessary to narrate this in detail since both parties have carried out extensive title investigations, as a result of which there does not appear to be a significant factual dispute. The critical issue is whether the subjects were conveyed to the applicants in terms of the 2002 disposition. If so, then the respondents’ title is bad. If not, Sir R D S Lockhart’s trustees retained the title and were able to convey the subjects to the respondents’ predecessors.

[6] The 2002 disposition contained the following description of lands in the dispositive clause:

“(In the Second Place) ALL and HAILL the lands and barony of Cambusnethan … all lying within the Sheriffdom of Lanark all unite erected and incorporated in ane haill and free barony called the barony of Cambusnethan by ane Charter under the Great Seal in favours of James Lockhart of Castlehill brother of the said Dame Martha Lockhart dated the Twenty sixth day of July Sixteen hundred and Ninety five years …”

[7] The description (In the Second Place) goes on to name numerous specific lands (“Crindledyke, Branchillburn, Herdhill, Burnhouse …” etc.) and subsequently states “excepting always therefrom the Mains of Cultness …” Following the description some eighty eight parcels of land already disponed over many years were excepted. The disposition bears to have been for no consideration. There is no plan other than two plans of two small plots of excepted areas attached to the disposition. It was not explored whether one of these could have formed a small part of the subjects. In respect of the (In the Second Place) subjects there is a deduction of title clause going back to an unspecified “title” recorded GRS (Lanark) 10th March 1959 and stating certain deeds of assumption of trustees from 1968 onwards. The granters granted simple warrandice.

[8] The 2014 disposition by the same trustees to the respondents’ predecessors contains a description including a plan of the subjects. It further provides:-

“… and which said area of land hereby disponed forms PART and PORTION of ALL and WHOLE that field of land called Wester Heather Muir, all as more particularly described in an Instrument of Sasine in favour of Robert Lockhart recorded in the Particular Register of Sasines on Twelfth October Eighteen Hundred and Twenty …”

[9] The deduction of title clause provides that the subjects were last vested in the said Robert Lockhart from whom the trustees acquired title by the 1916 trust disposition and settlement of Sir R D S Lockhart, and refers to various deeds of assumption from 1918 onwards. The disposition records a price of £10,000. The granters expressly granted no warrandice.

[10] At the time of the 2014 disposition we understood the respondents and related parties owned land both to the west and east of the subjects. To the west they own Castlehill Farm under title LAN75523. To the east they own land at Wemysshill Farm under title LAN217395. The subjects lie between these two areas.

[11] It is noted that the piece of land called Wester Heather Muir is not mentioned in the 2002 disposition. Whether the present subjects are part of what was once the Wester Heather Muir has been the subject of detailed research. There is no dispute that the present subjects do fall within that piece of land. It is, however, necessary to explain this in more detail.

[12] The Wester Heather Muir was described in an instrument of sasine by Robert Lockhart of Castlehill which followed upon a contract of excambion in 1820 between Robert Lockhart of Castlehill and Sir James Denham of Coltness. The 1820 Instrument of Sasine contains the following description:-

“ALL and WHOLE that field of land on the farm of Wemysshill on the estate of Coltness containing seventeen acres, three roods and twenty-two falls or thereabout called wester heather muir, bounded on the north by the public road leading from Goukthrapple to Overtown, on the east by the farm of Wemysshill; on the south by part of the same farm of Wemysshill and Hopefield Orchard, possessed by William McCartnie, and on the west by the field called Stonehill, part of the lands of Camnethan (sic) …”

[13] There is no plan associated with the contract of excambion or instrument of sasine. However, an estate map of Camnethan dated 1809 shows that the Camnethan and Coltness estates were contiguous. By comparison with later maps it can be seen that part of the boundary was at or about the location of the subjects. The 1809 map text states that Camnethan estate belonged to Robert Lockhart of Castlehill. It lies to the west of Coltness estate. It can therefore be inferred that the Wester Heather Muir (including the present subjects) was transferred in 1820 from Wemysshill Farm on the estate of Coltness to land in the same ownership as the Camnethan (or, we infer, Cambusnethan) estate. The Goukthrapple to Overtown road is now known as Castlehill Road running to the south of Wishaw.

[14] Other investigations have shown that the subjects were not subsequently conveyed as part of the farm of Wemysshill or made subject to lease of the lands and farm of Wemysshill. A plan going back to 1859 showed the subjects as being associated with land at Cambusnethan Colliery. A plan dated 1897 referred to the subjects as Sneddons Rows, which appeared to be miners’ cottages, and appeared to be separate from Wemysshill Farm. A plan from 1912 shows buildings on the subjects were known as Castlehill Rows. This may suggest that the subjects were associated with the adjoining Castlehill property to the west, as opposed to Wemysshill Farm to the east. Another plan going back to 1940 shows the subjects being associated with Hopefield Colliery to the south.

[15] Further investigations were made of the Coal Holdings Register. These indicate the existence of various leases between the trustees of Sir R D S Lockhart and the Hopefield Coal Company in which the land included the subjects. The relevant time-frames are uncertain from the papers before us, but appears to have included 1938. From all this it can be concluded that the trustees owned the subjects and that the subjects had not been conveyed to the owners of Wemysshill farm or Coltness Estate.

Applicants’ submissions

[16] The applicants had concluded missives with the Lockhart Trustees to purchase the residue of the Stonehouse estate and Cambusnethan estate. These were produced and showed the price stated at £6,000.

[17] The applicants had carried out research which showed that the subjects were part of the Cambusnethan Estate. Nevertheless the Keeper had refused to register an application by them. They highlighted the fact that the respondents had made two separate attempts to submit a non-domino dispositions to the Keeper for registration, which were rejected. The Keeper should not have cancelled the applicants’ submission for registration following the letter of 25 January 2010. They had made a further application in November 2014 but the Keeper had not informed them that the respondents’ competing title had been registered.

[18] Once the applicants had forwarded a form regarding notification of an inaccuracy, the Keeper’s office indicated that the crux of the matter was whether the subjects formed part of the residue of the lands of Cambusnethan or whether it was part of the neighbouring lands and estate of Coltness. It was clear that the Lockhart family owned the Cambusnethan Estate, thus ownership of the subjects vested in the applicants in terms of the 2002 disposition.

[19] It was reasonable to assume that the subjects had been assimilated into the Cambusnethan Estate. Various documents assumed that any remaining assets had been sold by the trustees. One of the trustees had indicated in a letter that he excluded warrandice to the respondents because of strong doubts that the trust had title to the subjects. A section of a counsel’s opinion was produced indicating that the trustees had had good title to convey ownership of certain mineral interests. In conclusion, the subjects were part of the Cambusnethan estate and had been conveyed to the applicants.

Respondents’ submissions

[20] The respondents indicated that they and other related parties were proprietors of land adjoining the subjects both to the west and east, namely at Castlehill Farm to the west and at Wemysshill Farm to the east. The current subjects bisected the two titles. They were not title raiders. They had acquired the subjects from the trustees at a consideration. Their investigations had concluded that the applicants had not obtained title to the subjects. They had made pre-registration enquiries with the Keeper and had had a positive response. In the light of the documents which they had supplied, the Keeper had been prepared to accept an application to register the subjects.

[21] The only description of Cambusnethan in the 2002 disposition was reference to a charter dated 26 July 1695. The subjects could not form part of the land contained within that charter. They had only been conveyed to Robert Lockhart by the 1820 excambion, over a century after the 1695 charter. Reference was made to Erskine 2.3.23 to the effect that the conveyance of an uncertain subject is inept and ineffectual.

[22] It was further submitted that the 2002 disposition made no reference to the 1820 excambion and instrument of sasine or the lands of Wester Heather Muir. While it might be correct to say in correspondence that the “estate of Cambusnethan” was conveyed in the 2002 disposition, a generic reference to the estate was not the same thing as a conveyancing term in a disposition. All that the 2002 disposition conveyed was the residue of the subjects contained within the 1695 charter and that did not include the present subjects.

[23] The respondents also referred to a passage in the Keeper’s letter of 25 January 2010 stating that the subjects in the 1820 excambion did not appear to have been included in the general description contained in the 2002 disposition. The Keeper’s position had not changed that there was no inaccuracy in the Land Register.

[24] The respondents also made certain comments upon the applicants’ position. The applicants had attempted to register an interest in the subjects in 2003, but had not provided a copy of the relevant application or the apparent 2003 disposition involving the applicants. Correspondence between the applicants and the Keeper had been uncovered which suggested that a 2003 disposition did in fact contain a reference to the 1820 excambion, but the Keeper was not satisfied that the applicants had title since the earlier 2002 disposition had made no mention of the 1820 excambion. It was remarkable that the applicants were now seeking to assert that the reference to the 1820 excambion was unnecessary.

[25] The respondents also pointed out that the applicants had attempted a second application for registration in 2014, in respect of a disposition executed in 2012 including a plan. This was submitted for registration in 2014, but came to include the title plan attached to the interested party’s title sheet having been printed from Registers Direct on 19 October 2015. No explanation had been given as to how this could have occurred. The applicants had had ample opportunity to obtain a fresh conveyance of the subjects from the trustees. If the subjects were regarded as part of the original bargain then it would have been simple for that to have been done. It was telling that the 2002 disposition narrated that the conveyance was for no consideration but that the applicants were asserting that the disposition covered a not insubstantial area of land.

Discussion

[26] We are assisted by the exhaustive researches by parties into the history of this matter. We are clear that the description of the subjects (In the Second Place) conveyed by the 2002 disposition falls to be construed as the subjects included in the barony title under the 1695 charter: “ALL and HAILL the lands and barony of Cambusnethan … incorporated … by ane Charter under the Great Seal…dated…1695,” as excepted.

[27] Professor Halliday states at 33-07: “If the lands are known in the locality and defined by possession, that is a valid (general) description. An example of such a description is a barony title where lands, possibly both contiguous and discontiguous, have been erected into a single estate by the Crown.” He further states at 33-15; “At common law it was competent to insert in a Crown charter a clause of union which enabled sasine to be taken on any part of several lands, even although discontiguous, which sufficed as sasine for the whole. Such union was implied in a barony title without the need of a clause of union, and so a description of lands by the name of the barony embraced the whole lands comprised in it.” Prophetically however he states at 33-08: “There is a particular danger of error if additional lands have been acquired by the seller … It is suggested that conveyances of a barony title should always, and of lands described by a general description should usually, repeat the existing general description.” He then goes on to discuss the practice of the insertion of more particular descriptions of land following upon the general description.

[28] It follows that the 2002 disposition description can only be a description of the subjects conjoined by the charter in 1695 less the specified exclusions. There is no additional description by general name. Nor do the 1820 subjects appear to be described at all later in the deed alongside other particular subjects in the list of barony lands, such as by reference to “Wester Heather Muir” or “Hopefield.” We are satisfied on the evidence that the Wester Heather Muir came in to the same ownership as the Cambusnethan estate in 1820 and thus, we infer, could not have been included in the barony title of 1695. Accordingly the 2002 disposition was inept to carry these lands.

[29] We are reinforced in this by the fact that the deduction of title clause in the 2002 disposition does not seek to deduce title as far back as Robert Lockhart of Castlehill in 1820. On the other hand, the 2014 disposition does do so. The latter is an impressive piece of conveyancing.

[30] It follows that the trustees did not succeed in divesting themselves of the subjects by the 2002 disposition and only did so by the 2014 disposition in favour of the respondents. It follows that the respondents’ title should be preferred.

Decision

Accordingly we find that the title sheet is accurate in showing that the respondents are proprietors of the subjects. We therefore dismiss the applicants’ application. We reserve all questions of expenses.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 8 December 2017

Neil M Tainsh – Clerk to the Tribunal