Scottish Court of Session Decisions

At advising on 3rd December 1943,—

LORD MACKAY .—In the year 1906 the late Duke of Fife made an offer asking "the towns of Banff and Macduff" to accept from him "as a free gift" a heritable subject lying for the most part in the county of Banff adjacent to the boundaries of Banff burgh and bordering the river Deveron. It turns out, upon the proof led, that two very exiguous and separated portions of the land lay just within the burgh of Banff, but this in the end was not argued as affecting the legal result. At what is described as a joint meeting of the town councils of Banff and Macduff, the towns accepted this gift on 26th November 1906. The matter, after considerable intermediate discussion as to its form, was put into operation on 7th November 1907 by a disposition of the lands and others, recorded in this and the next year in the sasines registers of the county of Banff and of the burgh of Banff of dates 30th November 1907 and 26th January 1908. The entry was antedated (a) as to the general lands as at 26th November 1906 (the date of acceptance), (b) as to the mansion-house and buildings at Whitsunday 1907, and (c) as to the rod fishing at Martinmas 1907. The important date of entry, however, is the date of the acceptance. The deed was a disposition, and not a feu contract, and, as presumably his Grace held of the Crown and of no subject superior, the two burghs by said sasines took a holding direct under his then Majesty.

For the questions which before us have occasioned two full debates, I need not do more than refer to the Lord Justice-Clerk's opinion when we sent the matter to proof before answer. It was common to both final speeches that the ultimate question is a single one, and is whether the right of property taken by the two towns in virtue of their acceptance of a free gift was part of the respective common goods as at a certain date. That date was 10th and 15th September 1909, when there was granted a lease for 99 years, over "the Common Seals of the Royal Burgh of Banff and of the Burgh of Macduff," and over the signatures of "a majority and quorum" of the provost, etc., and of the town clerks of the said respective burghs. This lease, No. 11 of process, was of the vastly greater portion of this heritage. Some nine years before this transaction, a general Act of Parliament affecting all Scottish burghs had been passed—Town Councils (Scotland) Act, 1900; and it, by no means for the first time in Scottish legal history, had forbidden by section 98 the alienation of "any heritable property of the burgh, or vested in the council, so far as forming part of the common good," except by a process of public roup. Among feus and alienations, or added to them, were tacks for more than five years. Now, what the two burghs over their burgh seals attempted to do was to make a "tack" for commercial purposes to a commercial concern for 99 years. They admittedly did not do so by exposing the letting to public roup. They did it by way of a public advertisement, not indeed

specifying any period of years, but clearly indicative of a purpose demanding a lengthy period, and then by accepting the first and only offer—for that purpose—and finally adjusting very onerous terms (as one might think) and making the lease a 99-year one at a yearly rent of £350, the lessors also taking over certain perpetual burdens of a conveyancing nature which one at least of the burghs had rendered itself liable to towards his Grace. I pause here for a moment simply to express a vivid doubt as to whether upon any sort of right held by councils over their burgh properties this transaction could have been justified as one truly for the benefit of the community. It is not necessary, however, to enter on this now. This lease was operated, at least so far as the payment of the rent is concerned, up to the year 1939–40. But at this stage of the proceedings various attempts to run the sanatorium and golf course having for one reason or another broken down, the lessees refused further implement. The word used was "renounce" the lease, but it is clear and was understood by all that they opponed the statutory nullity. And the two towns now brought this action for a declarator of the validity of the lease and for payment of the next year's rental. The decision with which we are faced, when pronounced in one sense or the other, will, however, admittedly govern the obligation for all the years to 2008 A.D.

Since the mode of enforcement adopted by the statute is as follows:

"All such … tacks made otherwise than as herein directed shall be void and null,"

and since it was fully and quite properly admitted at our bar that against a statutory nullity no pleas such as personal bar or estoppel or prescription by length of time can prevail, the sole inquiry (reserving all questions as to onus of proof) is whether this was property of the burghs forming part of their common good. As to the general proposition that payment and acceptance of rent will not take off a statutory nullity, one may, however, cite Smith's Leading Cases (12th ed.), vol. II, p. 868, and Canterbury Corporation v. Cooper . Intricate and close as the reasoning in the end became, I submit that it is very possible, and that it is right, to state at the outset, that at first blush such property as this (a) is property, (b) is property of both the burghs as burghs, (c) is not the property of any third entity such as independent trustees holding from the donor and interposed by him between the burghs and himself as the feudal owner of the subjects in trust, and (d) that it is prima facie as regards each burgh within its common good, since there has not been found and disclosed to us any other suitable category of known burgh property into which it has been possible to place it.

I am prepared at this stage, as I was at an early stage of the first hearing, to lay down (1) that, if the gift had been to one town and announced in terms otherwise of the letter of 23rd November 1906, there could have been presented no argument, even a plausible

argument, to throw the subject of gift into any category but that of the common good of the burgh supposed. It would then, as regards a royal burgh such as is Banff, have fallen clearly into the description of the common good of this class of burgh. We were not afforded any very real help from either side of the bar in the definition of "common good." On the early authorities, ripely considered and looked at together as a whole, I hold (2) that it is both possible and even necessary to arrive at a general understanding of the old law in the matter. Burghs proper are the creature of the sovereign right over the land of Scotland. They are endowed from their origin with certain gifts of land or, it may be, other capital endowments, but they also are clothed with certain rights or monopolies, and with powers to stent both the citizens and those who enter their bounds for trade. The property rights of all sorts are common good; the powers to stent and the rest are rights not forming part of the common good. I know of, and after extensive search have found, no third or intermediate kind of right originally effeiring to royal burghs other than these two. Statutes have in various ways added duties, such as provision of water or streets or light, and have with the duties conferred various additional powers to raise "rates" for these special or other general municipal purposes. The revenues or others relative to these rates are not "common good." The broad distinction has run on and still runs at this date. It must, lastly, be said that the ancient authorities make it clear that "accessions" to the original property endowments, whether emanating from the sovereign or from the wealthy landowners who set up the burgh of barony in their lands or other endowers, were contemplated. It is matter of the clearest assumption in decision after decision that such "accessions" are contemplated, and when accepted fall into and form part of the common good. They do not form, and have never been even pleaded before this time to form, a species of property apart, of some third category. If they were now allowed so to do, there would, in my opinion, be an end for practical purposes of the careful statutory provisions against alienation, and particularly that very dangerous form of alienation which is exemplified here, viz., making a commercial tack for money of long term.

Mention must be made of one additional factor. It was long ago decided by the Courts in England that royal burghs might (despite the apparent limitations of their constitution) validly accept, and thereby become proper trustees, trusts for certain charitable foundations—with specific and limited charitable purposes. The same practice for long obtained in Scottish burghs, and the important report on burgh constitutions made to Parliament in 1835 treats such trusts as existing and as validated by long usage. This additional power of such burghs is by the Act of 1900 taken up and saved by section 97, which regulates the duty to account and the method thereof, where a burgh is trustee for "any charity, foundation, or mortification." But our task was properly simplified again by a full and express admission that the present problem cannot be solved by suggesting that there is present a charity, foundation, or mortification within that section.

This preliminary survey of the ground makes it plain surely to all that, if the gift had been to one town, or had been several to two towns, the substance of it would have been within its or their common good and nowhere else. That being so, the hope of the two burghs, who sue as such jointly the present action (although they add rather curiously to their instance in almost an apologetic way the words "and as such known as ‘The Duff House Trustees’"), must depend solely on the fact of the gift being dual, and in particular of the form which is adopted in the formal deed. From quite early I had that impression, and I am unable to shake myself clear of it now. The use sought to be made of the dual nature of the gift was twofold. Firstly, it was attempted to show that the two burghs as such were joint trustees, and that under the deed of gift they held a separate fee in trust, and the beneficiaries, being not two communities and certainly not anybody outside the communities altogether but a single constituent composed of the whole changing members of the two burgh communities or corporations represented, were in the sense of the law of constitution of trusts a separate entity from the trustee holders. The second submission was founded on the form of the destination in the deed of conveyance, which was in fact a mere or simple destination proposed by the joint meeting of the councils and simpliciter agreed to by the late Duke and his agents. That destination is:

"To the Provost Magistrates and Councillors of the Royal Burgh of Banff and the Provost Magistrates and Councillors of the Burgh of Macduff jointly and to their joint assignees."

It was argued that, by some fixed rule of our Scottish conveyancing, a destination to A and B jointly and to joint assignees of A and B had effects in law which prevented the subject or the right title and interest therein entering the common good of either A or B. To be quite fair, I think, although not very explicitly, there was a secondary submission that, albeit no universal or rigid construction fell to be applied, the use of the words "joint assignees" in the present circumstances indicated such an intention of the donor.

It is these two submissions alone which now lie before us. I take them in order. As to a separate trust, I am quite clearly of the opinion that the attempt to set it up breaks down through quite a conglomeration of considerations. No such word as trust or trust purpose or even purpose occurs anywhere in the deed or in the letter made part of this narrative. The essential words of that letter are quoted in condescendence 2 by the pursuers. They run:

"I propose to ask … the towns of Banff and Macduff … to accept … a free gift."

I am not aware of any instance where the words "a free gift" have ever been, or could aptly be, used in conveying to mere trustees to hold for some other and separate beneficiary. (I shall deal in a moment with the second and third paragraphs of which use was sought to be made.) Next, the acceptance (which is again narrated in the inductive clause of the disposition) was made by what is described in the narrative as "the said Town Councils in joint meeting assembled on 26th November 1906." Within the minute book there is inserted a printed copy of the proceedings taken at this meeting, and it is certiorated by the appendage of the burgh seals and the signatures of the provost and a majority of each council. It is entered in that book as "Joint meeting of the two Councils" nothing more. In the body of the proceedings, the partakers are described as "the joint Bodies." Again, as I have indicated, the principal date of entry in the body of the disposition is taken back to that important meeting. Nothing seems clearer than that in accepting the gift on that day in simple terms of acceptance there was no thought of a separate trust being imposed, other, of course, than what is sometimes called the quasi-trust (not really a trust in the proper sense) which compels the management of a burgh to act with a reasonable outlook to the town's general good. Nextly, it is conceded that to operate a proper trust right there must be a separation of two personalities, one to hold and to be affected by the jus crediti of the other, the other to claim and have a jus crediti against the holder. In my opinion, this requisite is absent. Lastly, the most general requirement for the existence of any trust is best stated by Menzies, Lectures on Conveyancing (4th ed.), at pp. 503, 504, citing 1 Ross Leading Cases, p. 401. In short, the purposes must be sufficiently declared in the conveyance itself or in some identified writing "legally declared by the granter." Here, I find no adequate purposes in any deed or in any form. Further, although it is not necessary for the decision, I think it is clear on the general and statutory law (1867) then applicable to trustees that, without appealing to the Court's nobile officium for powers, the present dealing with the heritage would not have been a competent mode of ordinary administration open to a body of trustees. They (if trustees) might have approached the nobile officium or discretionary powers of the Inner House. For it is plain that they held no express power; that this was not (Menzies on Trustees (2nd ed.), para. 298, p. 160) one of "the powers necessary for the fulfilment of a trust purpose," and therefore implied; nor, lastly, was it one of those special powers demitted by statute to the discretion of the Junior Lord Ordinary (Acts of 1857, section 4, and 1889, section 3). But, rightly as I think, not regarding themselves as truly trustees, they never thought of such a proceeding to validate a long lease of the trust property.

At this stage it is most proper, as I think, to introduce and dispose of certain arguments upon the further terms of the letter of grant dated 23rd November 1906. Certain expressions in the second, third and fifth paragraphs were said to favour the trust idea. Properly construed, I think they were fatal to it. The second paragraph refers

to a "conviction" of the granter that the corporations of the two towns will know how to act for their material advantage, etc. The whole sentence expresses no dictation of a purpose delimiting the corporations' powers. It is governed throughout by the words "this gift" and the absolute freedom from restrictions which is asserted. Further, the following phrases refer only to the "manner" of two things—management and development. The donor has faith in the proper application by his donees of the ordinary modes of "managing" (for that is truly the function of the council in full burghs) the property of the burgh. I am clearly of opinion also that a just construction makes the words "for their material advantage," following upon the plural phrase "the corporations" and upon the words "the two towns," have a distributive use. They are apt to indicate—not a single nondescript and therefore unincorporated community—but the two communities respectively with their two managing corporations, i.e., in the present connection, elective bodies having the use of a corporate name. The third paragraph is, if anything, clearer still. It talks also of "management" it speaks of the town councils of the two towns; and, in any event, the donor is content to make a mere suggestion that the councils should sit together when managing. Were it a trust proper directed to a trustee body (a)consisting of, say, thirty-six ex officio persons, or (b) consisting of the two personœ supposedly held by the councils as such, then his attempt to "suggest" methods in which that single administrative body should perform its functions prescribed by the law of trusts would read very curiously indeed. I find the same sort of significance in the fifth paragraph, where the loose use of the words "a community" in the singular is not definite, but is expressed in popular language—the collocation being simply the donor's association with, and interest in, the inhabitants of the whole district. It would be very strange to find in this one phrase any intention implied that he intended to create a hitherto unknown body of beneficiaries, to wit, the composite elements of two different burghs.

I pass to the more stringent conveyancing suggestions, feeling perhaps that too long a space has been given to the erroneous idea of an express trust. Now, this other aspect is not easy to state, and until stated it is, of course, not easy to assess. It depends wholly on a certain alleged law in Scottish conveyancing as to two sorts of common rights in heritage. It depends on an assertion that a destination to A and B jointly and to their joint assignees has one defined meaning and no other. And it depends on a reading of certain passages from the year 1837 onwards, to which I shall have to refer. It depends, lastly, as I very definitely understood Mr Mackintosh to say, upon the phrases used in an earlier section (section 9) of the Town Councils Act, 1900, conferring (it is said) on town councils in royal and barony burghs a separate corporate existence from the incorporation of the burgh—thus affording the necessary substratum of two distinguishable legal entities.

For myself, to begin with, I have pondered long over the projected

utilisation of these four factors as if they could, together or in larger part, make up a satisfactory substitute for an express trust. I have not in the end been able to follow the involved set of reasons by which the constructive result was to be attained. Let me say at once, however, at the very outset, that I do not accept the general proposition that there is any one (or any generally understood) significance in conveyancing of a disposition (not creating either a superiority or a dominium utile) to A and B, both being corporations which presumably never die, and to the assignee or assignees of those corporations provided they agree and concur in the assignment. I am quite firm that it is impossible to isolate the meaning of this gift by its destination from the fact that the major contemplation of the donor was a gift of mansion and estate with fishings, to endure for all time. No fact is plainer on the letter and correspondence than that he contemplated a continued subsistence to an indefinite time of these two burghs. That being so, I believe that already there is a complete differentiation from such cases as may be figured in obiter dicta, as (a) a title to two parties as trustees for the firm—the firm having in Scottish law a separate persona. For these are mortal individuals, and the third persona may live at least to the death of the longer liver; and (b) a title to express trustees as a development of the law of trusts, for there we have as the result of the relationship, be it contractual or other, between trustees and beneficiaries what Blackstone calls "its grand incident," that "survivorship" is presumed, and even that it will over-ride what is presumed to be an erroneous counter-statement of the result (Blackstone, Book II, chap. 12, section 2). We in Scotland took a good deal of our law about trusts from England, but I am of opinion that the same "grand incident" would always have flowed with us from the nature of a trust and trust title where trust is express. It therefore, for this purpose, requires no conveyancing words of technical significance in any such destination. Thus one seldom finds the words "jointly" or "conjunctly," and one never finds, in my experience, the words "and to their joint assignees," or any similar expression.

Leaving that there, I pass now in the first place to the supposed use of the phraseology of section 9 of the Act of 1900. Here I again find a quite final stop-buffer to the reasoning, for I think section 9 was throughout misconstrued in its setting. The Act was one to consolidate the law of town councils in Scotland, and aimed at generalising the constitutions to a certain extent, but by no means entirely. Police burghs and parliamentary burghs had then no persona, no incorporation. Section 9 is one of a fasciculus of five sections under the heading "Constitution and Government of Burghs." But while a town council is to be elected for all and every burgh, only of a police burgh shall the town council "be a body corporate with a common seal" (section 5). The older burghs corporate were left where they were. By section 7 the council and magistrates of each

existing burgh were to have like powers and jurisdictions, etc., as each possessed according to the existing law. Since then in royal and barony burghs the community was the persona and the fluctuating administrative body only the managers thereof (Provost and Magistrates of Glasgow v. Barns; Fram and Others v. Magistrates of Dumbarton ), that position did not give these two pursuers as councils a separate corporate existence. What, then, of section 9 ? It deals palpably with (a) suits at law for or against towns, (b) titles to all lands after acquired. Now, just as the council (putting it for short) sues or is sued, when the town's interests or obligations are in question, as the nominal hand of the town and sues (in corporate name) for the town as representing it, so does it appear that when a town, after 8th August 1900, acquires in any wise new lands, it takes its title since that date to the council "in their corporate name." After that date, in my judgment, if a royal burgh should desire to take a title to its council as something separate from the community, it should do so by using all the names, or by some other device to show that it is not merely the titular name of the community itself which is being put to use. It is for that reason, then, (to pick up various hints already thrown out) that I am persuaded (1) that the two councils properly used their instance in the present action as two bodies with corporate name as representative of two towns, and not as the trustees of his late Grace the Duke of Fife, etc.; (2) that they accepted the gift as two bodies with corporate name; (3) that, at the earliest stage when their status did arise, they stamped a letter as a contract and completed the agreement in this way—Francis Gray, the town clerk, accepted on behalf of the town councils of Banff and Macduff; and, most important, (4) that they executed the lease under discussion in the same way by the burgh seals and the appropriate signatures of appropriate clerks and members of each council.

I have stated the above carefully, but I have felt very little doubt that this link in the chain of erection has snapped. The most frequent resort for the pursuers in both hearings was to the alleged conveyancing distinction for which an origin was, as it were, found in the judgment of Lord Moncreiff (Ordinary) in the Outer House in the year 1837. The endeavour, as I best understood it, was to erect from that, and out of certain approving judgments by later Lords Ordinary, a broad distinction of conveyancing as regards "ownership in common" of any heritage, one class being designated common proprietors, and the other class being designated "joint proprietors." I understand that one of your Lordships will deal at some full length with the conveyancing problem, taking the origin of the Scottish phraseology much further back. I have every reason to concur in principle with that rendering; but for our present purpose it may be left there, as I think the authorities cited and the admitted uniqueness of this

present "destination" are amply sufficient. I have from the first had considerable difficulty in appreciating that our Scottish law of conveyancing made any such absolute and unpassable cleavage between two classes of common property. The incidents which were by the argument assigned to joint property in heritage would certainly make me pause long before I agreed to the distinction as a general one. It was said that, where property was "joint," the common proprietors were tied to one another indissolubly until they mutually agreed on some specific mode of untying the knot; that they were deprived of the common remedy of division or sale; that, moreover, this indissoluble connection persisted after their respective deaths in respect of their heirs and successors; and, lastly, as I see it, that the ordinary rule of evacuating a destination, whether by express deed inter vivosor by the will of either, was also taken away generation after generation. If that be, as it may be, the result of one form of joint property, then I think it is absolutely incumbent on the Court not to allow instances of such a strange form of co-partnery to be extended beyond what is plainly necessary on the deeds. But I cannot rid myself of the idea that in this strange erection there has been a misunderstanding, both of what Lord Moncreiff originally expressed, and of what Professor Rankine meant, in the passages from which the collection of authorities was derived. The Professor's passage was in the first edition, (1891) at pp. 510, 511, and in the fourth edition at p. 586. I may add that, to the note which stood on p. 511 in the first edition, Professor Rankine added a reference to Grant v. Heriot's Trust, and also the following notandum, 4th ed., p. 586:

"In respect to the last passage, it may be well to avoid the use of ‘joint-owners’ to describe pro indiviso proprietors having no jus accrescendi."

This makes it obvious that, at the lowest, the late Professor's last view was that the descriptive term "joint-owners" was commonly used in both senses. The citations in all were as follows: Cargill v. Muir, M'Neight v. Lockhart, White v. Tyndall, Kennedy and Tullis, &c., v. Incorporation of Maltmen of Glasgow, &c., Schaw v. Black (per Lord Kinnear (Ordinary) at p. 337), Grant v. Heriot's Trust, at pp. 658 and 662. To these I would add the case of Anderson v. Anderson, with its reference by the whole Court to the case of Brock v. Hamilton, cited on p. 701, as the case affording the greatest light on the nature of the process of division. I shall not endeavour to go into these decisions or dicta in detail. It seems to me quite plain that there are instances known to and acknowledged by the law of Scotland where the right of two proprietors infeft in heritage does secure an implied survivorship in the person of the longer liver or livers, but I am satisfied that

these are and should be treated as exceptional cases. The law of trust title is the most notable; a disposition, to two or more, of a superiority over known and already existing subordinate holdings may be another; and probably the special trust for holding partnership property is a plain third one. I think, however, that the passage from Professor Rankine is quite definitely misunderstood. Professor Rankine heads chapter xxx (4th ed., p. 585) with the words "Limited estate. Common property," and, in my opinion, everything which he deals with thereafter is, in his opinion, common property. It is not a distinctive phrase from joint property, but is the universal phrase in Scots law. Again, it was quite erroneous to think that either Lord Moncreiff or he divided a class of multiple proprietors in a two-fold way, those who held pro indiviso and those who held jointly. On the contrary, what the Professor finds from Lord Moncreiff is that, while a certain class, namely heirs portioners, are holders pro indiviso while they have not taken the legal steps for division, they naturally cease to hold pro indiviso when these steps have been taken. Passing from the early Lord Ordinary's rather unfortunate reference to the English legal distinction of joint tenants and tenants in common, which I for myself believe to be a misleading analogy, the Professor then says (4th ed., p. 586):

"The joint right may be of such a kind as not to admit of severance at the will of any one of the conjunct fiars."

Notice that he refers to all the rights as "joint rights," and merely says that the right maybe of that kind, and he exemplifies by instances "as the case of co-partners and trustees." He also adds:

"Or it may only infer a jus accrescendi or benefit of survivorship, as in many cases of mortis causa destination."

Then he quite rightly says that to attempt an explanation of "the peculiaritiesof these rights would lead beyond the limits of this book." I myself read that quite clearly as indicative of the view, not that all joint owners are to be treated in this restrictive way whether the word "joint" be express or implied, but as indicative that there are certain classes of rights, of which co-partner and trust are the chief, which from their nature react upon the joint holding in a way more or less restrictive of division. If the learned Professor meant anything more (as I think he does not), I think that he was trespassing on to the province of conveyancing, and was without warrant. For my part, to reach a sufficient idea of the destination in question for the present purpose, I am content to rely upon (a) the passage in Bell's Principles (10th ed.) section 1073, cited by Lord Dunedin; (b) the passage from Lord Rutherfurd in the approved case of Brock v. Hamilton, where, at p. 703, he says, referring to the Roman law:

"That law and our common law following it, proceed upon the principles that no one should be bound to remain indefinitely in communione with another or others as proprietors of a common property; that for reasons of public policy, and especially to ensure the advantageous management of such

property, any joint proprietor should have it in his power, against the will of the others, to put an end to the communion; and that there arises out of the situation itself an obligation to divide, or where division or any other arrangement is impracticable, consistently with retaining the property, to adjust their respective interests by sale and division of the price"

(c) having approved of that Outer House decision, Lord Deas gave the judgment of the Court in Anderson thus (at p. 704):

"The remit now to be made proceeds on the footing that an action of this kind is a common law proceeding. The pursuer of it does not appeal to the nobile officium of the Court. He merely seeks to enforce his common law rights, which entitle the pro indiviso proprietor to have the subject divided, and, if not divisible, to have it sold. The ordinary rule is, that no man is bound to remain longer in communion than he pleases."

And then (d) the words of Lord Dunedin, who had all this tract of authority before him, in Grant. In that case, as it would be in this if Mr Mackintosh were right, the framer of a disposition had thought fit to introduce words in the destination to prevent a splitting up of the common property. His Lordship says (at p. 658):

"They seem to have considered that although that was so while it remained common property yet it was incumbent upon them to prevent a change from its being common property, and accordingly they put in as a real burden this clause which I have already referred to,—‘It shall not be in the power of the said Mr David Dalrymple or his foresaids to pursue for a division.’"

His Lordship bluntly declares that such a clause is a nullity and then expresses the view, which may have justification, that the law of common property up to Joseph Bell's time was not quite clear, but that Professor Bell had cleared it. Later on, after putting at its highest the metaphysical right of each common proprietor in every atom of the property, he adds this (at p. 658):

"And as this would be, from the motive of public policy, an absolutely cumbrous state of matters to keep up for perpetuity where the particular joint proprietors may in time coming be each represented in their interests by a plurality of persons, the law of Scotland has always held that the state of joint property may be brought to an end at the instance of any one of the joint proprietors pursuing a division or a division and sale."

It falls to be noted that his Lordship uses the term joint property, not common property, and makes his proposition universal. I should add that Schaw v. Black is correctly referred to by Sheriff Guthrie as editor of Bell, as providing an instance in which A, one of two joint proprietors, had validly conveyed her pro indiviso right while the property remained undivided, in security of a debt. It is true that the point referred to in the rubric is not that point, but the judgment assumes throughout as its substratum that the treatment by a joint proprietor of her pro indiviso right as a commercial security was a sound treatment.

For the above reasons, I am not able to accept either of the important links in the argument with which I am dealing. I hardly require, therefore, to deal with the connecting link. It must not, however, be thought that I acquiesce in the idea that the chain is properly put together even in this respect.

There remains to be considered whether in the terms of the disposition itself in the present circumstances there falls to be read as a question of conveyancing construction an intention to fetter the two councils in any important way. That brings me to my own construction of the destination. I have never felt a serious difficulty, for, first of all, counsel who presented this case so strongly before us was fain to admit (a) that his results would not have been arguable had the facts fallen in 1896 instead of 1906; (b) that it is not open to argue on Scottish law that a plain gift "to A and B" has any such effects; (c) that it is equally impossible to argue that a plain gift "to A and B jointly" has any such effects. He conceded, therefore, that the desired particular effect was attained by the addition of a "destination," in the particular meaning of Scots law, to the assignees of the two, A and B, jointly. For my part, I think the meaning and effect of these words in their present collocation are not doubtful. We are not dealing, as in the case of stranger individuals and still less of connected individuals like partners, with the question of heirs and successors or any power whatsoever to deal with the future. The contemplation is that of a gift jointly to two people who are persons presumed to be undying, and intended to be shared in equal interests by these two persons. Why, then, does any destination after the first takers appear at all ? It seems to me that it appears for one purpose, and one only, and that purpose is to indicate (whether it can be legally enforced or not) that they were to possess and enjoy the property in common each for his pro indiviso share for all time, but subject always to this, that during the joint survivance of each, which is regarded as indefinite, they shall only have power to dispose of the mansion-house and estate if both agree to alienate them. Now, such a construction is a perfectly legitimate and, I think, a very easy construction, and does not have any of the consequences argued for. Whether such a limitation on the powers of control while the two communities exist side by side can be enforced at law or not is not a question for us here. The necessary circumstance has not arisen. It could only be decided if there emerged a proposed taker from one of the two, A or B, who objected that, without the consent of the other, B, his assignment or disposition to an undivided half interest was not a good title. Should such a person emerge, this Court might have to decide, it is true, whether that was a good objection to title or not under this destination. But I can see no ground for saying that that disputable question, and perhaps difficult question, is one which has any bearing upon the present dispute. For, after all, one must go back to this, that the present dispute as outlined concerns nothing but one question, whether the existing pro indiviso right of these two incorporated persons is a right of such a nature that it falls into common good or is a right of some other nature which is extraneous to the common good, and therefore not struck at by the limitations on alienation.

If the supposed conveyancing difficulty is, as I think, clearly out of the way, the reasoning which I have formerly indicated is sufficient to show how my mind in the end rests. In my opinion, there is no other category known to me into which this gift of the late Duke can fall, except that of common good, and I so propose that your Lordships should decide.

[His Lordship then referred to certain parts of the proof which he had taken, and in particular to evidence regarding (a) the manner in which the gift was treated in the accounts of the two burghs, and (b) abortive proposals for the creation of a "constitution" defining the gift. He then concluded]—

For these reasons, which have taken longer to express than I would have wished, I am of opinion that the defenders succeed here. I do not proceed upon any definite view of the onus of proof. Normally, no doubt, if a leaseholder after many years should propose to repudiate his lease on the ground of inherent nullity, he must show the nullity. On the other hand, it is, first of all, the towns who raised the issue by a declarator of validity. It is, secondly, they who, without motion made by them to the counter-effect, led in the proof allowed by us, and, thirdly, it is they who, despite holding the Lord Ordinary's judgment, opened to us upon the import of the proof. On the whole matter, I think they probably were well advised in thinking that it does fall to them in the circumstances to satisfy the Court that they fall outwith the restrictive force of the statute, but, whether there be an onus or not, I have come clearly to be of the opinion above expressed.

My motion, therefore, is that we should sustain the defences, and refuse both the conclusion for declarator and the conclusion for payment of a rent.

LORD WARK .—The question in this case is whether the heritable subjects conveyed in the year 1907 by the then Duke of Fife to the pursuers by the disposition, No. 12 of process, form part of the common good of the royal burgh of Banff and of the burgh of Macduff, which is a burgh of barony and regality. If the question is answered in the affirmative, it is conceded by the pursuers that the action fails, inasmuch as the lease whose validity is sought to be established was concluded by private bargain in contravention of the restrictions on alienation contained in section 98 of the Town Councils (Scotland) Act, 1900, and would in terms of that section be null and void.

When the case came before us on reclaiming motion, we thought it desirable to know the circumstances in which the disposition was granted and how the subjects have been treated by the pursuers,

before proceeding to the construction of the disposition and of the most unusual destination of the subjects therein contained. The proof, in my opinion, does not assist the pursuers to establish their averment and contention that a separate trust was constituted in the subjects, and that they never formed, and do not now form, part of the common good of either burgh.

I do not think it necessary to enter into the history and meaning of the expression common good, for two reasons, first, that these have been discussed at length by Lord Mackay, with whose observations I entirely agree, and, second, that there was in the end no dispute between the parties that all property of a royal burgh or a burgh of barony not acquired under statutory powers or held under special trusts forms part of the common good. The question in this case therefore really comes to be whether the Duff House subjects are excluded from the common good of either burgh in respect that they are held under a separate and special trust.

The proof has disclosed that a strenuous attempt was made to have the disposition adjusted in such a form as to constitute a separate trust of the subjects to be conveyed. The late Mr Francis George, who, as town clerk of Banff, conducted the negotiations on behalf of the disponees, appears to have held the view that the subjects of the gift could be kept free of the fetters imposed by statute upon municipal administration only in one or other of two ways; (a) by the insertion in the disposition of clauses which made the carrying out of specified trust purposes a condition of the gift, or (b) by the obtaining of a Provisional Order. He accordingly did his best to have the "Constitution" of a separate trust inserted in the dispositive clause; but the Duke declined to make any conditions upon his gift, and the pursuers accepted a simple conveyance of the subjects. No Provisional Order was ever applied for.

I did not understand that counsel for the pursuers in the end of the day claimed that they could derive any assistance from the proof as showing that a separate trust had been established. Indeed, I think that Mr Mackintosh's argument proceeded upon the footing that the disposition was one without any express conditions, and that he must rely upon its terms as sufficient to imply the constitution of a separate trust in the subjects conveyed which prevented them from being the property of either burgh and from forming part of the common good of either. His argument fell under three heads. In the first place, he maintained that the terms of the Duke's letter, which are narrated in the disposition, showed an intention to create a separate trust for the benefit of neither burgh, but of the "community" formed by the inhabitants of the two burghs. I am unable to find in the letter any indication of intention other than to make a gift to the two burghs. His Grace asks "the towns of Banff and Macduff to accept from me as a free gift the mansion of Duff House etc." He offers this gift "with absolutely no restrictions as to the manner in which it is to be developed and managed," and ends by suggesting that the property should be managed by the "Town Councils of the two towns with the Provosts as chairmen in each alternate year." I can find nothing in this letter which assists the pursuers. Indeed, I think its terms are plainly those of a free and unconditional gift to the two burghs.

In the next place, Mr Mackintosh points to the destination to the provosts, magistrates and councillors of the two burghs. He refers to section 5 of the Town Councils (Scotland) Act, 1900, which provides that the town council of a burgh shall be designated by the corporate name of the provost, magistrates and councillors of the burgh; and section 9, which provides that the title to all lands acquired by the town council shall be taken in their corporate name. The effect of these provisions, he contends, is to separate the provost, magistrates and councillors of the burgh from the burgh itself, and to constitute them trustees for the burgh in respect of the subjects conveyed by the disposition of Duff House. But the same would be true of the conveyance of any heritable subjects acquired by either burgh alone, and it is not suggested or maintained that, if heritable subjects were so taken by either of the burghs alone, they would by that fact alone be excluded from the common good of the burgh. In truth, the corporate name is merely a label for the burgh, to be conveniently used in respect not only of titles to lands, but suits by or against the burghs, and deeds, contracts and other writs of importance executed or granted by the town council or the executive body in charge of the affairs of the burgh. In my opinion, there is no substance in this argument.

The third and main point taken by Mr Mackintosh is upon the terms of the destination to the burghs—"jointly and to their joint assignees." The effect of this destination, he argues, is to create not a right pro indiviso to heritable property, but a right of property, joint and indivisible, sufficient to keep it entirely separate from other property of either burgh and from the common good of either. We heard considerable argument as to whether such a right in heritable property was known to the law of Scotland, or could lawfully be constituted. Mr Mackintosh conceded that a destination to the two burghs jointly was not in any way different from a destination simply to the two burghs. I think this was an inevitable concession, for it is elementary that a destination to A and B jointly has exactly the same effect as a destination to A and B and, in either case, gives to A and B a pro indiviso right to one-half of the property. But he maintained that the addition of the words "and to their joint assignees" altered the whole effect of the destination and created an indissoluble right of joint property. No authority was quoted in support of this contention. A destination to joint assignees of two or more grantees appears to be without precedent; or, at all events, none was cited to us. It is, of course, familiar to find a destination in a charter or

disposition to A and his heirs or assignees. But the meaning of this is well settled. Prior to 1747, the destination to assignees enabled A, before being infeft, to assign his right to a third party, who thereupon, in virtue of the charter and assignation, obtained infeftment. (Bell Lect. (3rd ed.) vol. I, p. 587; Menzies Lect., 2nd ed., p. 506.) Assignees, therefore, meant assignees before infeftment. Such a destination is now unnecessary, since entry is now obtained by the disponee by the recording of his disposition. Nevertheless, the term assignees has continued to be used in heritable destinations, although it adds nothing to the destination, and is only useful to enable a title to be made up to subjects the disposition of which has not been recorded. This is now rarely necessary. A destination to A and B jointly and their heirs and assignees imports a right of proprietorship in each of the disponees to the extent of one-half pro indiviso, with full power of disposal thereof, independently of each other. (Erskine, Inst. III, viii, 35; Bell's Lect. (3rd ed.) vol. II, p. 843.) Any attempt to restrain that right of disposal is inept as being contrary to public policy. The right of division has been imported into Scots law from the Roman law. The case of Brock v. Hamilton, decided by Lord Rutherfurd in 1852, "affords," says Lord Curriehill (at p. 701) in Anderson v. Anderson, "the greatest light on the nature of this process of any reported authority." Lord Rutherfurd points out that Stair, Inst. I, vii, 15, says:

"Under the obligation of restitution is comprehended the obligation of division, whereby that we possess in common with others, or indistinct from that which they possess, we are naturally obliged to divide with them, whensoever they desire to quit the communion, for thereby we restore what is their own and we are not obliged thereto by any contract or delinquence."

Lord Rutherfurd continues:

"There can be no question, it is thought, after the authority of Lord Stair, referring to the Roman law, that an action for division of heritable property, held pro indiviso, though by singular titles, was imported into the common law of Scotland in the form of a brief of division in very ancient times. (Bell's Comm., I, p. 64.) … That law, and our common law following it, proceed upon the principles that no one should be bound to remain indefinitely in communione with another or others as proprietors of a common property: that for reasons of public policy, and especially to ensure the advantageous management of such property, any joint proprietor should have it in his power, against the will of the others, to put an end to the communion."

In Grant v. Heriot's Trust, the street and garden of a square were held in common property by the proprietors of the houses in the square under feu charters, each of which contained a clause providing that it should not be in the power of the feuar to pursue for a division of the common property. Lord President Dunedin, with whom Lord M'Laren, Lord Kinnear and Lord Pearson concurred, observed that he had no doubt that the

clause was a nullity, and added (at p. 658):

"I have no hesitation in saying that to give a thing in common property and at the same time to say that you are not to pursue a division is an impossibility according to the law of Scotland, just as great an impossibility as to give a person the property in fee and at the same time to tell him that he is never to dispose of it."

The reasons for the law of Scotland holding that the state of joint property may be brought to an end at the instance of any of the joint proprietors pursuing a division or a division and sale are stated to be reasons of public policy. These observations were not necessary to the judgment, but it is not unimportant that the great authority of Lord Dunedin supports the same view of the impossibility of preventing the dissolution of a pro indiviso right in heritable property as was expressed by Lord Rutherfurd, who was one of the most eminent of feudal lawyers of his day.

In my view, it is unnecessary to go so far as to lay it down that Scots law will never recognise a joint right in heritage which is indissoluble. But there is little authority to support the view that such a right is recognised by the law of Scotland. The pursuers relied upon certain passages in Rankine on Landownership as supporting their argument. I am unable to find in that learned author's remarks a recognition of a joint right in heritage which may not be brought to an end by the joint proprietors, except in cases of trust and partnership in which the nature of the relation is such that the joint right cannot be ended unless the trust or partnership is itself brought to an end. We were referred to the opinion of Lord Moncreiff, Ordinary, in Cargill v. Muir, where he makes a distinction between joint proprietors and heirs portioners. I respectfully agree with that distinction, but there is nothing in his Lordship's observations to suggest that he had in view anything but the distinction between a right of part proprietorship and a pro indiviso right. Reliance was also placed by the pursuers upon the opinion of Lord Kinnear, Ordinary, in Schaw v. Black, who cites with approval the distinction made by Lord Moncreiff in Cargill, but he carries the matter no farther. I am unable to find in either of these two opinions any indication that the law of Scotland recognises a right of joint property in two disponees which is indissoluble at the will of either. But, even if such a right could be created, I am of opinion that the mere inclusion in the destination to them jointly of the words "and to their joint assignees" is not sufficient to create such a right.

I agree with Lord Mackay in thinking that the intention of these words, if they are not mere words of style, was to indicate that the two burghs, which were both corporations which do not die, were to enjoy the property pro indiviso, and should only have power to dispose of it if both agreed to alienate it. I think that, in view of the authorities to which I have referred, it is more than doubtful whether such an intention can be given effect. But I agree with him that it

is unnecessary to decide that question, since the right of the partners is, in my opinion, a pro indiviso right to the subjects equally between them, and that right is in either case part of the common good of the burgh. I therefore agree that the action fails, and that the defenders should be assoilzied.

LORD JAMIESON .—I have had the advantage of reading the opinion which has been delivered by Lord Mackay, and, agreeing as I do with it, I have little to add. The pursuers' case is succinctly stated in article 10 of their condescendence. They say:

"It (the estate of Duff House) constitutes a separate trust estate held by the two town councils in joint ownership for behoof of the community formed by the inhabitants of the two burghs."

Their argument in support of that case rested on the terms of the disposition in their favour, and in its first branch on the wording of the destination. It is to the two town councils in their corporate names "jointly and to their joint assignees."

It was common ground that no precedent could be found for such a destination, either in the style books or in any reported case. Its effect was said to be to place the pursuers in the position of joint owners of an indivisible property, their right and interest in which neither of them could alienate alone, and the joint ownership of which could not be terminated at the will of either. Had the destination been merely to the institutes jointly, the position would not, I think, have been open to doubt. Each disponee would have had an equal right pro indiviso in the common property, and, while the whole subjects could not have been disposed of except by mutual consent, each would have been entitled to sell or burden his pro indiviso right, or insist on a division, or, if division were impracticable, on a sale and division of the price (Bell's Prin. (10th ed.) 1072–1082). Reliance, however, was placed on the dictum of Lord Moncreiff in Cargill v. Muir . To a proper understanding of that dictum, it is necessary to keep in view what was the argument presented to the Court. The action was at the instance of two persons, holding by one title the superiority of certain subjects jointly, pro indiviso, directed against their vassal's trustee for entry and payment of feu-duty. The defender maintained that he was not bound to submit to a multiplication of superiors, and he argued that the position was similar to that of heirs portioners, the eldest of whom alone was entitled to receive an entry. That defence was repelled on the ground that the pursuers held as pro indivisoproprietors under one title. Lord Moncreiff, in the Outer House, drew a distinction between heirs portioners and joint owners. The former, he pointed out, are not joint proprietors, but partowners. They hold pro indiviso while the subject is undivided, but each has a title in herself to her own part or share. The latter, on the other hand, he said, "have no separate estates, but only one estate vested

in both, not merely pro indiviso in respect of possession, but altogether pro indiviso in respect of the right." That being the position of the superiors, he held there had been no splitting of the superiority. A similar distinction between part owners and joint owners, pro indiviso, was made by Lord Kinnear in Grant v. Heriot's Trust (at p. 668) and in Schaw v. Black, where he quoted Lord Moncreiff in Cargill. In Schaw, Lord Kinnear was the Lord Ordinary, and his judgment was reversed in the Inner House, but it is referred to with approval by Lord President Dunedin in Grant, and he pointed out that the judges in the Division decided the case on a specialty and in no way controverted what had been said by Lord Kinnear. Now, while the rights of joint owners, pro indiviso, were thus defined by Lord Moncreiff, he was dealing with the position of the superiors as it stood under their title, and his observations were directed to showing that, as in the case of joint proprietors, they held one estate under one title and not separate estates or separate parts of one estate. By the term joint proprietors, he clearly meant owners pro indiviso of common property, and not that class of proprietors whose right to property held jointly is, owing to their relationship inter se, contractual or otherwise, unseverable. The joint ownership of a superiority is from its nature in a different position, but Lord Moncreiff said nothing to suggest that a joint proprietor, pro indiviso, of the dominium utileof an estate, might not dispose of his interest in the common property or insist on a division, or division and sale. The authorities already referred to by Lord Mackay clearly establish that he may do so, and it is unnecessary to refer to them again. I add one quotation from Bell's Commentaries. In a section dealing with "Limited Estates by means of Conjunct Rights," the learned author states the matter thus:

"Property naturally divisible may, by succession or purchase, become common, and by convention may be made indivisible; while that which is by nature indivisible may, in point of right, become separate instead of common property. For any of the joint proprietors may insist for the separation of his share, and dissolution of the community, unless the condition of his right, or his own agreement, or the occasion which led to the community, bar the proceeding"

(7th ed., vol. I, p. 62). It is, I think, by way of contrast to the general position of rights in property held jointly pro indiviso that Professor Rankine, after quoting the dictum of Lord Moncreiff, says:

"The joint right may be of such a kind as not to admit of severance at the will of any one of the conjunct fiars,"

and he gives as examples the rights of co-partners and trustees (Land-Ownership, 4th ed., p. 586).

Into this class of unseverable rights the Duff House Estate is said to fall, by the addition of the words "to their joint assignees" in the destination. I agree with Lord Mackay in thinking that the intention may have been that the grantees, having an indefinite or perpetual existence, should continue to hold the estate, unless or until they

might consider it to the advantage of the two burghs to dispose of it by joint action, but I am unable to take the view that the effect of these additional words is to render the pursuers' rights indissoluble. The question of whether or not any restriction may have been imposed, which might prevent either of the burghs disposing of its interest alone, is irrelevant to the decision of the case. As their title stands, and stood in 1909, they have each an equal right pro indiviso in the property, and the sole question is whether such right forms part of the common good of each burgh.

The second branch of the argument was founded more particularly on the terms of the Duke of Fife's letter offering the gift of the estate which is set out in the inductive clause of the disposition. The pursuers endeavoured to have incorporated in the disposition a constitution setting up an administrative body to manage and administer the estate, and regulating the powers of such a body. In short, they desired that the disposition should take the form of a trust conveyance establishing a trust to be conducted independently of, and separately from, the administration of the affairs of either burgh. They failed to obtain this. Therefore, if any trust was created, it can only be spelt out of the terms of the disposition as it stands, but in my view it cannot. The title is in name of the provost, magistrates and councillors of each burgh, and not to them and their successors in office as trustees. It is taken to the two town councils in their corporate names as the proper bodies to hold the titles of, and administer, any property belonging to the burghs. But the gift was a gift to the two towns and made without restriction, and when the Duke says that he is convinced that the corporations of the two towns will know how to act for their material advantage, he means just what he says, the advantage of the two towns. Stress was laid on the fact that he goes on to say "as well as for the recreation and well-being of the community." By community he no doubt meant the inhabitants of the two burghs, but I am unable to hold that such a reference to their well-being is sufficient indication of an intention that they should be regarded as fused into one body, so as to constitute a single beneficiary on behalf of whom the town councils were to hold and administer the estate as trustees. The true position appears to me to be that the estate belongs to the two burghs as common property, pro indiviso, and that it merely falls to be administered by the councils, doubtless in a fiduciary capacity, but in the same fiduciary capacity as any other burgh property.

That being so, the interest of each burgh therein must, I think, be regarded as part of its common good. It was urged that it was an essential requisite of property forming part of the common good of a burgh that it should be held and managed by the town council alone, but that runs contrary to what was said by Lord President Inglis in Nicol v. Magistrates of Aberdeen . If it is not part of the

common good, it is difficult to see into what category it falls. Parliament has been careful to prescribe for the preparation and audit of annual accounts of town councils' intromissions with the whole of the property and revenue of burghs. These fall under the heads of common good, assessments, revenue-producing subjects held under statutory powers, and charities or mortifications the management of which is vested in the council as sole trustees. It appears to me that the Duff House Estate can only be placed in the first of these categories.

I agree, therefore, that the defenders should be assoilzied.

LORD JUSTICE-CLERK (Cooper).—I agree. The whole efforts of the pursuers were devoted to establishing the proposition, twice formulated by them on record, that Duff House Estate "constitutes a separate trust estate held by the two town councils in joint ownership for behoof of the community formed by the inhabitants of the two burghs." This was the sole alternative offered by the pursuers to the view that the estate was property held not jointly but in common, and that the pro indiviso share of each burgh fell into that burgh's common good.

Special considerations would, of course, apply to a case in which, by the express terms of a disposition or deed of gift to a burgh, the granter had impressed the transfer with specific conditions affecting the management, control or use of the subjects—a result which in this instance the pursuers strove to attain but failed—for subjects so transferred and accepted might not fall into common good. But that is not this case. For the reasons given by your Lordships, I consider that the theory of trust advanced by the pursuers has completely failed, (a) because there was no effective separation of the legal title from the beneficial right, and (b) because there are no distinctive trust purposes.

The only topic on which I would venture to add a few supplementary observations is the final refinement of the pursuers' argument, viz., that, whether there had been constituted a true trust or not, the effect of the disposition of 1907, read in its context of relevant circumstances, was to create not a right of common property but a joint right, by virtue of which the two councils were indissolubly united in relation to Duff House Estate, the beneficial interest being in the conventionally amalgamated community of the two burghs. In the production of this strangely artificial result, special emphasis was attributed to the almost magical efficacy of the destination to the disponees jointly and to their joint assignees.

The difficulty of this subject is partly a terminological one, due to the differing senses in which the word "joint" and its approximate synonyms can be, and have been, employed. A similar perplexity has been introduced by the same cause into the law of obligations (Gloag on Contract, 2nd ed., p. 199; Coats v. Union Bank of Scotland );

and into the law of succession (M'Laren on Wills (3rd ed.) vol. I, p. 633). In the law of property, the case of Schaw v. Black affords an instance in which Lord Kinnear describes as a "joint owner" a person whom Lord Shand describes as a "pro indiviso proprietor" and an "owner in common."

I have found no more exact summary of the law than that contained in Gloag and Henderson's Law of Scotland, 3rd ed., pp. 489–90, and with these learned authors I use the term "joint" to describe the class of right typified by the ownership of co-trustees, and the term "common" to describe that typified by the ownership of two or more persons in whom the right to a single subject has come to be vested, and each of whom is entitled by his separate act to dispose of his separate share.

It was the latter class of right which was discussed by Stair (Inst. I, vii, 15) as a subhead of the obligation of restitution; by Erskine (Inst. III, iii, 56) as the quasi-contract of communion of goods; by Pothier in an appendix to the law of partnership; and by Bell (Prin. (10th ed.) sections 1071 et seq) under the title of "common property." All these expositions, with their various sources in principle, can be traced back to a single sentence in Justinian's Insts. (III, 27, 3), in which the res communis is contrasted with societas (cf. Partnership Act, 1890,section 2 (1)), and the rights and duties of owners in common are attributed in part to the obligation of restitution and in part to quasi-contract. The distinctive feature of such common property (derived from the fact that each co-owner has a separate and separable share) is the absolute right of every co-owner to terminate the community at will, and this characteristic has been uniformly explained by reference to considerations of public policy, both by Roman Law (C. 10, 35, 2) and by Scots Law (Craig, Jus Feudale, II, 8, 35 and 41; Brock v. Hamilton; Grant v. Heriot Trust .) Hence it was that in the last-mentioned case Lord Dunedin could say that "to give a thing in common property and at the same time to say that you are not to pursue a division is an impossibility according to the law of Scotland."

Joint property, on the other hand, has received little doctrinal exposition as a mode of holding property, probably because its attributes are not so much the incidents of the joint right as the consequences flowing from the relationship existing between the persons who alone can have a joint right. So far as has been traced, there is no instance of a joint right in the strict sense having been held to exist except in persons who were inter-related by virtue of some trust, contractual or quasi-contractual bond—partnership or membership of an unincorporated association being common examples—and it seems to me that such an independent relationship is the indispensable basis of every joint right. The distinctive feature of the right of such joint proprietors is the jus accrescendi, which excludes

the possibility of separate shares in the several joint owners, and still more emphatically excludes the possibility of severance of the tie, except, of course, by dissolution of the relationship on which the joint ownership rests. Finally, the considerations of public policy, which in cases of common ownership justify the rule that nemo in communione invitus detineri potest, have no application to the entirely different situation created by joint ownership.

With these considerations in mind, I revert to this case. There is no trust or other independent relationship between Banff and Macduff in regard to Duff House Estate. The bare fact that they are united as co-disponees of a single subject will not suffice to create such a relationship, otherwise every case of common ownership would be a case of joint ownership. There is nothing in the disposition of 1907, viewed in the light of relevant surrounding facts, to exclude the inference of common ownership, unless it be the substitution in favour of "joint assignees." This form of destination has seemingly never before been used in the history of Scottish conveyancing. The use in isolation of the word "assignees" suggests the assignation of an unfeudalised conveyance, and recalls a chapter of law now nearly closed. If this is all that the destination meant, its force was spent when the disposition of 1907 was recorded. Moreover, it is not clear from the term used whether what was contemplated was an assignation by A and B jointly to C, or an assignation to C and D jointly—the latter being the more literal interpretation. On any view, I consider that a sufficient meaning can be given to the words by reading them as referable only to the period during which the subjects remained in the undivided possession of the joint disponees. They are, in my opinion, quite insufficient either to create joint ownership or to establish the "indissoluble bond" between the two disponees, which Mr Mackintosh ultimately conceded was essential to his case. The right of the two burghs is a right of common property, and they have not been deprived of the inherent incidents of such a right.

Upon this view, it is unnecessary to determine the wider question whether it is impossible by any conveyancing device to create an indissoluble bond between co-owners who are not in the full sense joint proprietors, or—to put the question differently—whether it is possible in this respect to create a class of right midway between common property and joint property. That matter may be left with the observation that, so far as appears from the books, total exclusion of the common owner's right to partition has never been achieved, and that, according to the high authority of Lord Dunedin, it is impossible of achievement.