Scottish Court of Session Decisions

George Heron and Messrs J. & W. Kinnes were proprietors of adjacent properties in Dundee, Heron's bounding that of Messrs Kinnes on the north. The buildings on the Messrs Kinnes' ground did not extend up to their northern boundary, but a space of 2 feet in breadth was left between the north wall of their buildings and Heron's ground. In 1879 the proprietors agreed that an access should be formed between their properties.

Accordingly, by disposition dated and recorded in April 1879, the Messrs Kinnes, “in implement of arrangements” between them and Heron, “but without any price paid,” disponed to Heron, his heirs and assignees whomsoever, (1) the strip of ground 2 feet in width belonging to them on the north of their buildings, and (2) a footpath to which they claimed right along the south side of Heron's ground, declaring that the subjects disponed were disponed with and under, inter alia, the following real burdens, conditions, and declarations, viz., that the Messrs Kinnes and their successors should be “bound, when required and entitled, when we or they think proper” to excavate in the manner specified the ground disponed, and also so much of the ground belonging to Heron as should be required to form an access 80 feet in length and 10 feet (in a particular part 15 feet) in breadth, which excavations were to be made at the sole expense of Messrs Kinnes and their successors; that when the excavations were made, or at the time of making, Heron and his foresaids should be bound at his and their own expense to erect upon his or their ground adjoining the ground to be excavated such retaining walls as might be necessary to support such adjoining ground; that the Messrs Kinnes and their successors should have “the free and unrestricted use in all time coming, along with” Heron and his foresaids, “of the ground to be excavated as above mentioned,” … and that as an access “to the said tenements vested in us;” that the Messrs Kinnes and their foresaids should be entitled to make openings in the ground to be excavated to give light to the sunk flats of their houses; and that Heron and his foresaids should be restricted from erecting any building within 10 feet of the north wall of the buildings belonging to the Messrs Kinnes upon the ground belonging to him under the disposition or otherwise, in so far as the same was not to be excavated, in such a way as to obstruct the light of these buildings. Finally, it was declared that the “express provisions and declarations” in the deed were real burdens upon and affecting the subjects disponed, and should be recorded in the register of sasines, and inserted in all future transmissions, otherwise such transmissions should be null and void.

The Messrs Kinnes having failed to implement the obligations undertaken by them in the disposition, proceedings were taken against them by Heron in the Sheriff Court, and part of the work of making the access provided for in the disposition was subsequently executed by Heron under judicial authority at the expense of the Messrs Kinnes. In 1884 the Messrs Kinnes became bankrupt, and were sequestrated, and Heron consequently was unable to recover from them the money which he had expended in partially carrying out the excavations which they should have executed.

In November 1891 Heron brought an action for reduction of the disposition. Neither the Messrs Kinnes nor the trustee in their sequestration appeared to defend the action, but defences were lodged by Mrs Martin, who was creditor in a bond and disposition in security over part of the Messrs Kinnes' property, dated and recorded in 1876, and who had entered into possession under said bond in 1883. The defender put in a minute stating that she was ready to “execute at her own cost, so far as not already done, the excavations,” which the granters of the disposition sought to be reduced had undertaken to perform.

The pursuer's pleaded, inter alia—“(1) That the defender had no title to oppose the reductive conclusions of the summons.”

The defender pleaded, inter alia—“(6) In respect of the offer made by the defender the action ought to be dismissed.”

On 19th July 1892 the Lord Ordinary (Low) repelled the defences for Mrs Martin: Found, reduced, decerned, and declared against her, all in terms of the conclusions of the summons for reduction and declarator.

“ Opinion.—… The question thus raised seems to me to depend upon whether Mrs Martin has a title to enforce the obligations in the disposition? If she has not, then I think that (subject to a certain reservation which I shall afterwards notice) she has no title to object to the reduction which is asked.

Mrs Martin's contention was that the object and effect of the disposition was to acquire a servitude right of access to the subjects disponed in security to her, and that she became entitled to the servitude right by accretion. Now, if the owner of

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a property burdened with a bond and disposition in security, subsequently acquired a servitude in favour of the property, I think that it might be difficult to say that the bondholder would not be entitled in virtue of his infeftment to maintain and vindicate the servitude. But the present case is not simply one of a servitude acquired for the benefit of the security property as dominant tenement. There is here, first, the alienation of a portion of the subjects of the security, then there is a contract for the formation of a mutual access over the portion of the security subject disponed and part of the disponee's property, and then there are counter obligations ad factum prœstandum on the part of disponer and disponee. Now, I do not think that anyone can claim the benefit of such a transaction who is not also bound in the relative obligations. Can it be said that Mrs Martin is bound to implement the obligations undertaken by the Messrs Kinnes in the disposition—that they are enforceable against her? I think not. I think that it is out of the question to say that the proprietor of subjects disponed in security can, by a contract entered into after the date of the bond, and without the consent of the bondholder, bind the latter in such obligations as are contained in this disposition. It is true that Mrs Martin offers to execute the works stipulated in the disposition in so far as they have not been already executed. The pursuer, however, is not bound to accept the offer unless Mrs Martin is in a position to enforce the contract against him. But in my opinion she can only enforce the contract against him if he can enforce it against her, and for the reasons which I have given I do not think that he can do so.

Mrs Martin further relied upon the declaration in the disposition that the provisions and declarations therein should be real burdens upon the subjects disponed. I do not think that the declaration aids her, because, in my opinion, the proprietor could no more lay real burdens upon the subjects disponed after the date of the bond, which would be preferable to the bondholder's right, than he could burden the bondholder with obligations ad factum prœstandum….

In expressing my opinion that Mrs Martin had no title to object to reduction unless she had some title to sue for implement of the contract, I indicated that that proposition might be subject to a certain reservation. What I had in view was this—If the pursuer or the Messrs Kinnes had, in pursuance of the contract, made alterations upon the ground disponed to Mrs Martin in security which would lessen the value of her security, unless she got the benefit of the access for the purpose of making which these alterations were executed, I think she might have had a sufficient interest to entitle her to ask that decree of reduction should not be pronounced unless and until there was restitutio in integrum, that is to say, until the ground conveyed to her was restored to the state in which it was prior to the deed under reduction. But no such question is raised here. It is not said that the ground covered by Mrs Martin's bond has been touched, and I understand that the operations executed by the pursuer are not upon, or even ex adverso of Mrs Martin's ground. She has the security for which she stipulated, and she does not say that anything has been done which lessens its value. On the contrary, her object is to increase its value by enforcing a contract to which she was not a party, and to which, in my opinion, she has never acquired right.

Upon the whole matter, I am of opinion that the pursuer is entitled to decree.”

The defender reclaimed, and after the case was in the Inner House she lodged a minute stating that in addition to implementing the obligations undertaken by the Messrs Kinnes in the deed sought to be reduced, as far as the same were unimplemented, she offered to pay the pursuer a sum to meet the expense he had incurred in partially carrying out the same.

Argued for the defender—A party having an interest might oppose the reduction of a deed although not entitled to sue an action for implement, e.g., a heritable creditor in an action of irritancy ob non solutum canonem. The deed in question created a servitude in favour of the subjects held in security by the defenders. The benefit of that servitude accresced to the defender's security, and she had an interest and a title to oppose an action which would deprive her of that benefit, provided she took upon herself, as she was entitled to do, the counter obligations incumbent upon her authors. The Messrs Kinnes would not be entitled to undo their agreement with the pursuer and so prejudice the defender.

Argued for the pursuer—The defender's bond being prior in date to the disposition sought to be reduced, the defender undoubtedly could not be prejudiced by the latter deed. Nor could she insist on that deed being implemented on the ground that the benefit of the access stipulated for had accresced to her security. This was not simply a case of a servitude being created in favour of ground already disponed in security of debt. The disposition embodied a contract with reciprocal obligations, and the servitude of way did not come into existence until the obligations undertaken by the Messrs Kinnes were fulfilled. The defender was not a singular successor, and she had no right to insist on the disposition in question being implemented, because the pursuer would have had no right to enforce the counter obligations against her. Having no right to insist on implement of the disposition, she had no title to oppose its reduction.

At advising—