Scottish Court of Session Decisions

James Porteous of Turfhills, in the county of Kinross, raised an action against William Horn Henderson, solicitor, Linlithgow, and George Henderson, residing at Gellybank, Kinross, for any interest he might have in the premises. The action concluded to have the defender William Horn Henderson ordained to exhibit and produce “the whole writs, titles, and evidents of and relating to the lands of Turfhills, in the county of Kinross, in so far as these or any of them are in the possession or under the control of the defender, the said William Horn Henderson, all unvitiated and uncancelled, or at least in such condition as they were in when the said defender received the same; and the said defender ought and should be decerned and ordained, by decree foresaid, to deliver up the said writs to the pursuer, to be used and disposed of by him as his own proper writs and evidents in all time coming.”

The pursuer averred that he was heritably infeft and seised in the lands of Turfhills by virtue of a disposition in his favour by the defender George Henderson, dated 10th and recorded 12th November 1892. He further averred—“(Cond. 2) In virtue of his said recorded disposition, the pursuer has good and undoubted right and interest in and to the whole writs, titles, and evidents of the said lands, and has good and sufficient title and interest to call for exhibition, production, and delivery thereof, in terms of the conclusions of the summons. (Cond. 3) The defender, the said William Horn Henderson, has in his possession certain writs and evidents of the said lands of Turfhills, which fall within the title of the pursuer. These writs and evidents are necessary to the pursuer, but the defender, the said William Horn Henderson, retains them, and although he has been repeatedly called upon to hand them over to the pursuer, he refuses, or at least delays to do so, and the present action has been rendered necessary.”

William Horn Henderson lodged defences in which he admitted the title of the pursuer to the lands of Turfhills. He further, in answer to Condescendence 2 and 3, “admitted that the defender's firm has custody of certain very old documents relating to the lands of Turfhills. Explained that these documents belong to Mr John Henderson, W.S. They were presented as gifts to him by his uncle, the said George Henderson, before the said lands were disponed to the pursuer. By the aforesaid disposition the pursuer became entitled to receive, and did receive, conform to inventory, the whole writs necessary to complete the title to said lands. The said documents were not included in said inventory, but were excluded therefrom

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because they were and are of no value to the pursuer as writs and evidents of his title, and they were and are of very considerable interest and value to the said John Henderson for private and family reasons, his ancestors having been proprietors of the said lands for many generations. It is further explained that while the said John Henderson claims the right to retain the said documents in respect of their intrinsic value to him, he does not and never has refused to exhibit them to the pursuer, and he is still willing to exhibit them.”

The pursuer pleaded—“(1) The pursuer being in titulo, and having a good interest to demand the said writs, is entitled to their exhibition and delivery, with expenses, as concluded for. (2) No relevant defence.”

The defender pleaded—“(1) No title to sue. (2) The action is irrelevant. (3) The defender having offered to exhibit any of said documents which the pursuer may desire to see, the conclusion for exhibition should be refused. (4) The said documents being the property of the said Mr John Henderson, and the pursuer having neither title nor interest to demand delivery of them, the action should be dismissed. (5) The said documents being of no value to the pursuer as writs and evidents of his title, and being of value to the defender, the defender should be assoilzied, with expenses.”

The Lord Ordinary ( Kyllachy) appointed an inventory of the old documents mentioned by the defender to be lodged. This was done, the inventory showing that the writs called for were 114 in number, the earliest being dated in 1699 and the latest in 1800.

Thereafter the Lord Ordinary, by interlocutor dated 19th August 1897, appointed the pursuer to state in a minute the particular writs of which he desired delivery or exhibition for any purpose connected with his title to the estate, and also to state the purpose for which he required such delivery or exhibition.

A minute was lodged for the pursuer stating “(1) that the pursuer claimed exhibition and delivery of all the writs enumerated in the inventory, No. 10 of process; (2) that he claimed exhibition and delivery of the whole of the said writs, in respect that, as accessories of the lands, they became his property by virtue of the conveyance in his favour, dated 10th, and recorded in the Division of the General Register of Sasines applicable to the county of Kinross the 12th, both days of November 1892; that in respect of the pursuer's right of property in the said lands, he might require possession of the said writs at any time, but that as the Lord Ordinary had asked the immediate purpose for which he required the writs, he stated that having sold certain multures to Mr James Charles Calder of Ledlanet, Kinross-shire, Mr Calder's agent had called upon him (pursuer) to send the titles of said multures to prepare the disposition thereof in favour of Mr Calder. These titles pursuer never had, and therefore possession of the said writs had become necessary to throw light on the subject, and if possible to establish the pursuer's right to the multures in question; that pursuer was unable to specify the particular writs referable to the said question from a perusal of a bare inventory, and that till he had an opportunity of examining the writs themselves he was unable to be more specific.”

The disposition which formed the pursuer's title to the lands of Turfhills contained the following clause:—“ I assign the writs, and have herewith delivered the same, conform to inventory thereof hereto annexed and subscribed by me as relative hereto;” and it was admitted that he had received from the disponer all the deeds contained in the inventory annexed to the disposition.

On 26th November the Lord Ordinary assoilzied the compearing defender.

Note.—“ The pursuer in this case demands delivery from the defender of a number of documents which he says are titles of his (the pursuer's) estate of Turfhills, and of which he alleges that the defender is in possession. The defender admits that he possesses a box of old documents relating to the estate in question, which he says he received from his uncle, a former proprietor. But he denies that the same are in the proper sense titles of the estate, and claims to retain them as documents which have now only a family interest.

When I heard the case in the procedure roll I thought it necessary, in the first place, to ascertain exactly what the documents in question were; and I accordingly appointed an inventory of them to be lodged; and this having been done, I allowed the inventory to be seen, and gave the pursuer an opportunity of stating any claim he might have to particular documents as necessary or useful towards the security of his title. He has now lodged a minute, in which he in effect declines to make any selection, claiming the whole documents as being accessory to his estate, and therefore his property. He at the same time states that he expects to find the documents useful in connection with some claim for multures; but he does not explain how all or any of them bear, or are thought to bear, upon that question.

I regret that there has been some delay since the lodging of this minute, there apparently having been some misapprehension about further procedure. I am now, however, in a position (the parties stating that they do not propose further argument) to decide the case; and I have to do so on the footing that the pursuer rests on the general proposition that all documents which have at any period formed part of the title to a landed estate, or any part of it, belong in property to the owner of the estate, and cannot belong to anyone else.

Now, I should be sorry to suggest any doubt of the soundness of the doctrine which was fully explained by Lord Benholme in the case of Ruxton, 24 D. 1182— that doctrine being that the proper titles of

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a landed estate are accessories of the estate, and cannot be made the subject of any right of property or of pledge in the person of anybody who does not own the estate. But it appears to me, upon the best consideration I have been able to give to the matter, that the doctrine in question has no application to documents in the position of those in the defender's inventory. These documents are not, in my opinion, among the proper titles of the estate of Turfhills. They are not part of the prescriptive progress, nor, so far as appears, are any of them required for the protection of the pursuer's title. They may once, no doubt, have had a different character, but they are now, I apprehend, simply ancient documents having no function or value as titles to land, and possessing only a sentimental or antiquarian interest. I am not therefore prepared to entertain the pursuer's demand; and being of that opinion, it is not necessary to inquire how far, in any view, it would have been possible for the pursuer to claim delivery of those of the documents which relate partly to lands other than the estate of Turfhills—lands belonging to persons other than the pursuer. I need hardly say, however, that the existence of this specialty presents some additional difficulty in the pursuer's way. On the whole, while I regret that a litigation should have been necessary in a matter so very academical, I must assoilzie the defender, with expenses.”

The pursuer reclaimed, and argued— Title-deeds were accessory to heritable rights. They were extra commercium. A person entitled to the land had a right to all the title-deeds affecting it, and a person having such title-deeds could not refuse to give them up— Renny & Webster v. Miles, February 8, 1847, 9 D. 619, opinion of Lord Fullerton, 627; Christie v. Ruxton, June 27, 1862, 24 D. 1182, opinion of Lord Benholme, 1185; Smith v. Wallace, November 26, 1869, 8 Macph. 204, opinions of Lord Deas and Lord Ardmillan, 215; Sugden on Vendors and Purchasers, 14th ed., p. 433. It was not merely a sentimental but an essential matter that he should get possession of the old titles outside the prescriptive period. An old title might define a servitude or contain an obligation of relief—Bell's Lectures on Conveyancing, ii. 708— and the Lord Ordinary was not entitled to say that under no circumstances could these old writs be of any use to the pursuer. He had never waived his title to demand all the writs. The phrase in the deed “ I assign the writs” meant the whole writs, and the pursuer was not bound merely to accept those contained in the inventory annexed to the deed. The inventory specified the writs delivered, not those assigned. The inventory contained the deeds that the seller considered essential to make up a good title, but did not contain all that the buyer was entitled to demand—Titles to Land Act 1868, sec. 8. The short clause of assignation introduced by that Act was to be as operative as if it had been in the old form (sec. 5), and the old form of assignation assigned the whole writs, titles, and securities granted to the disponer and his predecessors or authors—Juridical Styles, 3rd ed., i. 100. In any event, the pursuer was entitled to all the writs in the possession of the disponer at the date of the sale, and he denied that the disponer had given the writs in question to John Henderson, before the date of the sale.

Argued for defender William Horn Henderson— The argument of the other side amounted to this, that a purchaser of lands was entitled to demand any titles connected with the land, however old these titles might be, and notwithstanding they might have been sold by the proprietor in the last century. This was absurd. All the titles connected with an estate were not accessory to the lands. The only titles accessory to the lands were a prescriptive progress of titles, enabling a purchaser to vindicate his right to the lands against the challenge of outsiders. Lord Benholme, in Ruxton, when he spoke of titles being accessory to an estate, was speaking merely of those title-deeds which formed a good prescriptive progress, and which the seller was bound to hand over to the purchaser in order that the latter might have a good title. All the authorities quoted by Lord Benholme spoke of such title-deeds, the documents specified in the inventory attached to the disposition. It was plain from section 8 of, and Schedule B, forms 1 and 2, attached to, the Titles to Lands Act, that the only writs which a purchaser of lands, whose disposition contained an assignation of writs according to inventory, was entitled to demand from the seller, were those mentioned in the inventory. That was the bargain contained in the deed, and the obligation of the seller was to deliver the writs specified in the inventory and no others.

At advising—