Re: Why the brothers changed Douglas to Drysdale
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In reply to:
Re: Why the brothers changed Douglas to Drysdale
Davis Stewart 2/06/13
The Duke of Argyle in 1796 feued Hillfoot part of the Crown's estate to Drysdale . Is this your John ?
The Scottish Law Reporter Vol XXX
Monday March 20 1893
Before the Lord Chancellor Herschell and
Lords Watson Ashbourne Macnaghten and Field
ORR v MITCHELL AND OTHERS MOIR'S TRUSTEES
Ante vol xxix p 513 and 19 R 700
Property Disposition Conveyance of Lands without Reservation Construction Superior and Vassal
The Duke of Argyle holding the plenum dominium of the estate of Castle Campbell of the Crown in 1796 feued Hillfoot part of the estate to Drysdale reserving coal and coal haughs . In 1726 Moir acquired Drysdale s feu In 1808 the Duke conveyed the estate remaining in him to Tait who in 1811 obtained a Crown charter of resignation and confirmation Tait's estates were sequestrated in 1828 and in 1837 his trustee on the narrative that he had exposed for sale the superiority and feu duty of the lauds of Hillfoot and that Moir had been preferred to the purchase disponed to Moir all and whole the toun and lands of Hillfoot all as at present possessed by Moir The warrandice clause excepted the feu rights or investments granted by the disponer's predecessors there was an assignation of the Crown charter of 1811 with its unexecuted precept of Sassine Moir was infeft on the precept In 1880 Tait's trustee disponed to Orr the lands of Castle Campbell with a description which included the lands of Hillfoot and the coals and coalheughs and in 1890 Orr raised an action against Moir's trustees to have it declared that he possessed the coal in Hillfoot in virtue of the conveyance of 1860 The defenders relied on the conveyance of 1837 Held rev the judgment of the Whole Court that the pursuer was entitled to the declarator sought on the ground that the deed of 1837 conveyed the superiority of the lands alone and did not include the coal This case is reported ante vol xxix p 543 19 R 700 The pursuer appealed At delivering judgment Lord Watson My Lords this appeal depends upon the construction of the dispositive clause of a deed of conveyance dated 28th July 1837 executed in implement of a contract of sale by the trustee on the sequestrated estates of Crawfurd Tait in favour of John M Arthur Moir of Hillfoot the respondents author In that clause the principal subject conveyed is described as all and whole the town and lands of Hillfoot with mosses muirs and all and singular pertinents used and wont pertaining and belonging thereto all as at present possessed by the said John M Arthur Moir and his tenants Two other subjects Lochyfaulds and the Bog are by the same clause disponed in similar terms with this difference only that they are described as having been formerly possessed by persons who do not appear to have been proprietors It is not matter of dispute that at the date of the conveyance in question the dominium utile of Hillfoot Lochyfaulds and the Bog was vested in John M Arthur Moir with the exception of the coal which was reserved by the Duke of Argyle then owner of the barony of Campbell when he feued out these lands to a predecessor of Mr Moir's in the beginning of last century The superiority of the lands and the reserved estate of coal continued to form part of the barony which was acquired from the Argyle family by Crawfurd Tait and passed to the trustee in his sequestration In the year 1860 the lands and barony of Campbell were purchased from the trustee by the late Sir Andrew Orr and are now feudally vested in the appellant as his testamentary disponee This action has been brought by the appellant in order to have it found and declared that he has the sole and exclusive right to the coal in the respondents lands of Hillfoot , Lochyfaulds and the Bog and they resist decree on the ground that the coal reserved in the original feu rights was conveyed to John M Arthur Moir by the disposition of the 28th July 1837 If that defence cannot be established it was conceded in argument that the appellant must prevail Shortly stated the case which was maintained by the respondents in the Courts below and at the bar of the House was this that the dispositive clause of the deed of 1837 conveys the lands to their authorin terms which must necessarily include the coal and that these terms cannot be qualified or controlled by any expressions of intention occurring in other parts of the deed
The appellant on the other hand maintains that a conveyance of all and whole the lands may aptly signify either an estate of fee or an estate of superiority although the former may be its primary meaning and that a conveyance in these general terms must be limited to a right of superiority whenever it is clearly apparent from the context of the deed that such was the intention of the parties
The Lord Ordinary assoilzied the respondents On a reclaiming note to the Second Division their Lordships ordered cases to be prepared and laid oefore the Judges of the Court of Session for their opinion The Lord Ordinary who was one of the consulted Judges adhered with a slight variation to the opinion which he had previously expressed in the note appendea to the interlocutor under review The remaining twelve Judges were divided six to six and the judgment of the Lord Ordinary was affirmed by the Second Division in conformity with the opinion of the majority of the whole of the Court
When a disposition in implement of sale has been delivered to and accepted by the purchaser it becomes the sole measure of the contracting parties rights and supersedes all previous communings and contracts however formal Again in ascertaining the subject to which the purchaser has acquired right the disposition is according to Scotch law the governing clause of the conveyance and if its terms are express and unambiguous they cannot be cut down by evidence of a contrary intention gathered from the context
If for example the deed of 1837 had expressly conveyed the lands of Hillfoot together with the coal therein it would have carried the reserved coal to the disponee although the context showed that the parties meant to sell and buy a right of superiority only Their Lordships had occasion to notice these principles which are matter of trite law in Scotland in deciding the case of Lee v Alexander 8 App Cas 853 But that case does not lay down the rule that in arriving at the true meaning of a dispositive clause all usual and legitimate aid to construction must be excluded
More Replies:
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Re: Why the brothers changed Douglas to Drysdale
Davis Stewart 3/07/13