Scottish Court of Session Decisions

The North British Railway Company obtained a special Act of Parliament in 1891 which enabled them to obtain from the Corporation of Edinburgh certain ground in Princes Street Gardens, Edinburgh.

By section 35, sub-section 22, of said Act it was provided that “nothing contained in this Act shall prejudice or affect the rights of servitude or other rights of the Corporation, or of the vassals of the Corporation, in virtue of their title-deeds.”

An arbitration was entered into between the parties, with the result that the Corporation were found entitled to receive £26,500 from the railway company as the value of the land to be conveyed. The parties endeavoured to arrange the terms of the disposition of the land to be granted, but were unable to agree. The Corporation desired to insert in the dispositive clause the words—“But declaring always that these presents are granted with and under the provisions of the said North British Railway (Waverley Station, &c.) Act 1891, in so far as applicable to the subjects and others hereinbefore disponed,” and to add after the words “we grant warrandice” the following—“but subject always to the provisions of the said North British Railway (Waverley Station, &c.) Act 1891 and Acts incorporated therewith.” The railway company refused to accept a disposition with these qualifications, but finally they acquiesced in the qualifying words being inserted in the dispositive clause but not in the repetition of them in the warrandice clause. They expressed their willingness however to accept a conveyance without any clause of warrandice.

The Corporation charged the railway company on letters of horning to make payment of the said sum of £26,500 and the railway company brought a note of suspension of said charge on the ground they were not obliged to pay until they received a conveyance to the lands.

Upon 19th April 1893 the Lord Ordinary ( Lord Low) pronounced the following interlocutor:—Finds … that the respondents are entitled to qualify both the dispositive clause and the warrandice clause of the conveyance by a reference to the said Act … and in respect of the offer made by the respondents to grant to the complainers a conveyance in terms of the draft No. 37 of process, Finds the letters and charge orderly proceeded: Sustains the same: Repels the reasons of suspension: … Refuses the prayer of the note: … Grants leave to reclaim.

“ Note.—As I intimated when this case was argued before me, I am of opinion that the respondents are entitled to qualify the conveyance which they grant to the complainers by a reference to the Act of Parliament. The complainers are not entitled to acquire the lands except subject to the conditions and restrictions imposed by the Act, and I do not think that the respondents can be asked to grant a disposition which ex facie might convey to the complainers, and bind the respondents to warrant to them larger and more unrestricted rights in regard to the lands than they are authorised to convey by the Act. In such circumstances it seems to me that a conveyance containing a reference to the Act, both in the dispositive and in the warrandice clause, is the proper form.

The complainers consented at the debate to a reference to the Act of Parliament in the dispositive clause, but they objected to any such reference in the warrandice clause, and they have now lodged in process a minute (No. 39) in which (for the first time) they offer to accept a conveyance without a clause of warrandice at all.

I confess that I am unable altogether to appreciate the complainer's objection to a reference to the Act in the warrandice clause. I do not see how they can be prejudiced by such a reference, because, while the dispositive clause, qualified by a reference to the Act, conveys to the complainers all that they are authorised to acquire, a warrandice clause, also qualified by a reference to the Act, lays upon the respondents the obligation to warrant to the complainers all that is conveyed by the

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dispositive clause—neither more nor less. I am not sure if a reference to the Act of Parliament in the warrandice clause is necessary for the protection of the respondents, but I think that they are entitled to have the reference inserted in order to make it quite clear that they do not warrant to the complainers more than they are entitled to acquire under the Act of Parliament.”

The complainers reclaimed, and argued—That as a matter of conveyancing the dispositive clause was the only proper place for qualifications. The warrandice clause should be construed with reference to the dispositive, but should not have qualifying words inserted in it.

Argued for the respondents—They were entitled to have the qualifying words repeated in the warrandice clause. There was nothing novel in this course. The complainers had failed to show that they had any legitimate interest in having the words omitted. The proposal to have the warrandice clause left out was an attempt to get by implication a clause of absolute warrandice—Bell's Lect. on Conveyancing p. 216.

At advising—