Scottish Court of Session Decisions

This was a petition by the Magistrates of Elgin for authority to feu certain lands of which they were trustees for charitable purposes under a deed of mortification. The following narrative is taken from the report of Mr Black, W.S., to whom a remit was made to inquire into the circumstances set forth in the petition:—“The petition is presented by the magistrates and treasurer of the burgh of Elgin, trustees or patrons under a deed of mortification executed by Mr William Coming of Auchray on 12th October 1693, with consent of Mr James Cumine of Rattray, the heir of Mr William Coming.

“It appears unnecessary to refer to the purposes of the mortification further than to say that it has for its object the maintenance of four decayed merchants, inhabitants of the burgh.

The application is presented for authority to approve of certain feus already granted by the petitioners in the circumstances noted below, and to empower them to feu out the remainder of the lands held by them as patrons of the mortification. These lands are held by the petitioners, as such patrons, under two dispositions and assignations granted to their predecessors in office, the first on 3d June 1696 by John Donaldson, and the other on 26th May 1696 by John Innes with consent of his wife.…

In 1851 the magistrates of Elgin feued a portion of their lands to a Mr George Morrison for a feu-duty of £5, 0s. 6d., and again in 1860 a further portion thereof to Mr Robert Morrison, at a feu-duty of £2.16s. 8d. The charters creating these feus were granted by the magistrates as representing the burgh and community of Elgin, and an objection having been raised to the validity of the title of Mr Alexander Morrison, who came to hold both feus, he obtained, on 30th August 1876, a charter of novodamus and confirmation from the proper superiors, the magistrates and treasurer of Elgin, as patrons of the mortification created by Mr William Coming, under which he was duly infeft by registration in the appropriate register of sasines.

At the time Mr Alexander Morrison got this novodamus he also obtained from the said magistrates and treasurer, as patrons of the mortification, a feu-charter, dated 30th August 1876, of two other pieces of ground, part of the mortified lands, for payment of a total feu-duty of £17, 8s. 10d. (being at the rate of £9 per acre). It is to be remarked here that though the petition states that Mr Morrison's ground is feued ‘for nursery purposes,’ the charters contain no restriction or prohibition whatever as to the use for which the ground may be applied.

The petition states that these various feus have been granted erroneously, and without adverting to the necessity of obtaining authority to feu said lands, and that it would be very much for the interests of the beneficiaries that the magistrates should obtain the authority of the Court to feu the ground, and prays the Court to sanction and interpone their authority to the feus already granted to Mr Alexander Morrison, and to authorise and empower the petitioners to feu out the whole of the lands contained in the said two dispositions and assignations forming their title as above mentioned. And the petition is founded upon section 3 of the Trusts (Scotland) Act 1867.

The question at once arises, Is the present a case that comes under the provisions of that Act? The petition sets forth that ‘there is no power to feu the lands belonging to the mortification,’ and there is undoubtedly no express power of feuing given either in the deed of mortification or in the two relative dispositions and assignations. On the other hand, there is, as the reporter reads them, nothing in any of these deeds of the nature of a prohibition against feuing.

Now, prior to the passing of the Trusts Act of 1867 the patrons of mortification were, in the absence of any prohibition to the contrary (express or implied), entitled at common law to feu out the mortified lands without authority from the Court, and the petitioner's title in the present case contains or implies no such prohibition, so that unless some change has been introduced into the law by the Act referred to, the petitioners are entitled to feu their estate without any consent. It appears to your reporter that the object of the Trust Act, as expressed in its preamble, was to give ‘greater facilities for the administration of trust estates in Scotland,’ and not to restrict powers which trustees already possessed. He is therefore inclined to think that the Act can only apply where trustees have already no power to feu, and that the sanction of the Court is not necessary in the present case.” … Your reporter is of opinion that the petition is unnecessary.

Mr Morrison appeared by counsel and argued that the petition should be dismissed as unnecessary.

Page: 240↓

On 16th November 1882 the Lord Ordinary ( Kinnear) reported the petition to the First Division.

“ Note.—The Lord Ordinary would have been disposed to dismiss this petition as unnecessary, holding that in the administration of a permanent trust for charitable purposes trustees are entitled, without obtaining the authority of the Court, to feu out mortified lands— Merchant Company of Edinburgh v. Heriot's Hospital, Mor. 5750. But it is stated that although there is no reported case to that effect, similar petitions have been entertained, and that power to feu has been granted under the Trusts Act 1867; and as the point is one of general importance, affecting the administration of charitable trusts, the Lord Ordinary has thought it proper to report the petition.”

At advising—