Scottish Court of Session Decisions

At advising on 27th February 1951,—

LORD PRESIDENT (Cooper).—The legal issue raised by this appeal is whether one of two pro indivisoproprietors can bring an action of ejection against the other who without his consent has taken exclusive possession of part of the common property. It matters little whether the point is taken as one of competency or of title to sue, though I prefer the latter line of approach.

At first sight the simple solution of the problem is offered by the plain facts that neither pursuer nor defenders qua pro indivisoproprietors have a title to exclusive possession of any part of the subjects; that such a title can only be obtained as a result of agreement with all the pro indiviso proprietors; and that the only remedy which our law offers in a situation such as the present is an action of division and sale. Moreover, the substantive action of ejection is the lineal successor of the older intrusion, and the still older novel dissasine; and all these are in essence possessory remedies, only maintainable by a pursuer who can aver and prove a title to possess, and who wishes the defenders to be ejected in order that he may himself again possess the subjects—Hope, Major Practicks, vi, 15; Stair, I, ix, 26; Craig v. Inchbreckie . This line of thought would lead to sustaining the defenders' pleas to the competency and to title to sue.

But several circumstances combine to suggest that this may be an over-simplification of the problem and that it would not be safe to affirm in absolute terms that one pro indiviso proprietor can never under any conditions eject another from the common property. (1) The stringency of the theory of the common law has latterly shown a tendency to relax in certain obiter dicta which indicate that one pro indiviso proprietor may sue another pro indiviso proprietor to prevent "encroachment" upon the common property, and that the ejection of an "intruder" with no title to exclusive possession may be tantamount to preventing an "encroachment"—Lade v. Largs Baking Co., per Lord President M'Neill and Lord Curriehill at p. 20, Lord Deas at p. 21; Aberdeen Station Committee v. North British Railway Co., per Lord Shand at p. 984; Maclaren, Practice, p. 222. (2) Were we to dismiss this action outright as incompetent and so confirm the defenders in hoc statu in the possession and enjoyment of one half (and apparently the better half) of the subjects, we might

embarrass the Court in doing full justice in a subsequent process of division and sale. For aught yet seen, the defenders may be able in that process to gain an unfair advantage by refusing to remove in reliance upon one or other of the modern statutes protecting sitting "tenants" of dwelling-houses and small shops from liability to disturbance. I note that, while the defenders have challenged the pursuer to bring a division and sale, they have carefully refrained from themselves instituting such a process or from undertaking that, if sale is determined upon, they will give the purchaser vacant possession. (3) In so far as the equities are relevant, they are not in favour of the defenders. The title to possess which they produce is manifestly worthless, and the transaction whereby they acquired for £250 a half share pro indiviso in a tenement of a shop and three houses, and a right, quantum valeat, to occupy the shop and the ground floor house, makes it difficult for me to regard them as being in the full sense bona fide purchasers for value. The defenders have taken exclusive possession of part of the subjects without the consent of one of the two pro indiviso proprietors, and they have done so with their eyes open; and it is a very old principle of our common law that, before the Court will determine the rights of parties in such a situation, spoliatus ante omnia est restituendus.

In this difficult situation it seems plain that a division and sale is now inevitable, and the sooner it is brought the better. To grant decree of ejection, as the Sheriff did, would leave most of the difficulties unsolved and might operate unfairly to the defenders. My proposal is that we should recall the interlocutors appealed against and simply sist the action to enable the pursuer to bring an action of division and sale, thus leaving a completely free hand to the Court in that process. If that process is, as I trust, promptly carried to a successful conclusion, this action will fall to be dismissed. If, however, difficulties emerge, it is possible—I say no more—that this action may be revived. Should the pursuer delay to move, the defenders can institute the division and sale.

LORD CARMONT .—I agree.

LORD KEITH .—While the course proposed by your Lordships leaves all questions open, I feel impelled to point out some of the difficulties that, in my opinion, face the pursuer. It is conceded that this action is without precedent, but the pursuer claimed some support from the case of Lade v. Largs Baking Co. and the dicta there. I turn at once to consider the facts of that case and see what it decided. The pursuers were pro indiviso proprietors, to the extent of one-half, of certain ground in Largs. The Largs Baking Company were adjacent proprietors. The pursuers claimed that a road to the south of the property was part

of the property held pro indiviso, and objected to the baking company using that road and to their projecting a beam over the road, attached, it would appear, to the company's property for the purpose of loading operations. The pursuers sought a declarator of boundaries, an interdict against use of the road, and a decree for removal of the beam. The other pro indiviso proprietors did not concur in the action. Indeed, it was said that one of them was among the defenders called nominatim as shareholders of the baking company. The defenders, without taking any preliminary plea to the pursuers' title to sue, allowed the case to proceed to proof. Thereafter the defenders for the first time took objection to the pursuers' title to sue. The Lord Ordinary sustained the objection to the extent of finding that the action could not be competently presented by the pursuers. On a reclaiming note the Court held that the defenders by proceeding to proof without plea taken had waived the objection and remitted to the Lord Ordinary to hear the parties on the merits. That is all the case decided, but it is clear that the complaint of the pursuers was against an encroachment by an adjacent proprietor. The dispute was not a dispute between pro indiviso proprietors as to management of the property or occupation of the ground. The expressions of opinion by the Judges as to the right of any co-owner to resist encroachment must be read secundum subjectam materiam and, in my opinion, clearly had reference to encroachment or intrusion by third parties. Even to that extent they were obiter only, but as to disputes between pro indiviso proprietors inter se they had neither relevance nor authority at all.

Any co-owner is entitled to protect his interest against encroachment and to take action without the consent of his co-owners for that purpose. But the question of how the land held in joint ownership shall be possessed is not a question of encroachment, but a question of management and administration. Here the rules are simple and well settled. All co-owners must concur in such matters. As Professor Bell (Prin., sec. 1072) states it:

"Common property is a right of ownership vested pro indiviso in two or more persons, all being equally entitled to enjoy the uses and services derivable from the subject, and the consent of all being requisite in the management, alteration, or disposal of the subject."

Not only is this applied to the in-putting of tenants, but also to the out-putting of tenants so that a tenant cannot be removed if any co-owner refuses to concur. Erskine (II, vi, 53) gives this reason:

"Because every inch of the ground belongs to both proprietors pro indiviso in indeterminate proportions; and consequently, it is impossible for the tenant to remove from the share of the lands belonging to the pursuer, in the removing, without also removing from that which is vested in the other proprietor; to which the law cannot compel him, unless that other concur in the suit."

Murdoch v. Inglis and Grozier v. Downie are good illustrations of the application of this rule.

Lord Dunedin has stated the right of a pro indiviso proprietor to resist encroachment thus:

"It is quite clear that any pro indiviso proprietor is entitled to have a possessory action against an outsider who is troubling him in the possession of the pro indiviso property"

—Warrand v. Watson . I emphasise the words "against an outsider." Lord Trayner has said of a warrant to eject:

"Such a warrant (not readily granted) is granted only against one who is in possession of a subject without a title to possess, and who is keeping another out of a beneficial enjoyment to which he is entitled"

—Hutchison v. Alexander . Neither of these conditions is, in my opinion, applicable here.

An action of ejection was one of the old possessory remedies. It asserted for the pursuer a right to possess. The present form of action is but the modern equivalent. This is made clear in the traditional words of style contained in the conclusions of such an action, which are notably absent in the present case, "to make the same void and redd that the pursuer, &c., may enter thereto and peaceably possess and enjoy the same." That it can be used against a co-owner who has a right to possess, flowing from his property title, is, in my opinion, a plain impossibility. A co-owner, it is true, has not an exclusive right of possession, unless by agreement with his co-owners, but he may possess in a variety of ways. He may allow a co-owner to have sole natural possession in return for a compensating money payment; he may share the natural possession of the whole subject with his co-owners, as in the case of sisters occupying a house in common; he may join with his co-owners in letting the subjects, dividing the rent in proportion to his interest in the property; he may occupy one part of the property, and his co-owner another part; he may occupy one part, and his co-owner draw a rent from the other part. That disputes may arise as to the manner of possession in many cases is undoubted. This is but one aspect of differences between co-owners in the management of the subjects. When such differences arise, our law has recognised two methods of cutting the Gordian knot—the appointment of a judicial factor and recourse to an action of division and sale. Nowhere will a trace be found in textbook or decision that a dispute about possession between co-owners can be solved by an action of ejection, though down the centuries countless such cases must have occurred.

An ejection in the present case would indeed solve nothing and benefit neither party. The pursuer would no more be entitled to possession than the defenders. On the other hand an action of division and sale will solve the difficulties. Either a division will be ordained or the property will be sold. If it is sold, unless to the defenders, the defenders must yield vacant possession of the part occupied by them. They occupy under no tenancy title, and no proprietor can sell his property without ceding possession in return for the price. If the defenders refused to sign the conveyance, the Clerk of Court could be

authorised to sign for them—Whyte v. Whyte . If they refused to cede possession to the purchaser, they could then be ejected under a process of removing or otherwise.

In the present case I see nothing but a dispute between co-owners about possession. In this process the rights or wrongs of that matter are neither here nor there. We are concerned with the question of remedy. If the parties cannot resolve their dispute among themselves, there is an obvious remedy open to either of them in an action of division and sale. In my opinion an action of ejection is, for the reasons I have stated, incompetent.

I would add that in the circumstances of the present case an ejection would, so far as I can see, work great hardship to the defenders without conferring any real benefit on the pursuer. Equitable considerations here seem to me to be all in favour of the defenders, particularly when one comes to consider how they came into possession. The pursuer in 1939 conveyed to his sister, Mrs Cilley, one-half pro indiviso of the subjects in question, which seem to consist of a shop and dwelling-house on the ground floor and two dwelling-houses on the upper floor. Mrs Cilley thereafter carried on a grocery business in the shop and occupied the dwelling-house on the ground floor until 1947. I assume she did so with the pursuer's consent. In 1947 Mrs Cilley sold her pro indiviso share of the subjects to the defenders, sold her grocery business to the first-named defender and ceded possession of the shop and ground floor house to the defenders. At this time the pursuer was abroad, and there is no suggestion that the transaction was not carried out in perfectly good faith or that the defenders had any reason to suppose that the then state of possession which had continued for over eight years should not be continued with themselves substituted as the new pro indiviso proprietors in place of Mrs Cilley. The pursuer has apparently continued throughout in civil possession of the two upper floor houses which we were told are let to two tenants from whom the pursuer takes and retains the whole rents. If material, these facts would have to be established by proof. I merely take them at the moment pro veritate to illustrate the situation that might result. If the defenders were ejected they would lose the goodwill of a business for which the first-named defender had paid Mrs Cilley; they would be put out of their dwelling-house in which they have lived for the past three years; the dwelling-house and shop would remain empty and productive of no return to the defenders or the pursuer, unless parties could agree as to how it was to be possessed, which in the temper of the parties seems highly unlikely. The defenders have indicated that they are prepared to bring an action of division and sale. This would enable them, if the usual practice were followed, to bid, if there were a sale, for the whole property, and, if they proved the highest bidders, they would thereby retain their dwelling-house and the business. The pursuer, if he chose, could also be a bidder.

Such procedure is not only fair but beneficial to both parties. An ejection would be productive of no benefit that I can see to any party and would be, in my opinion, highly inequitable to the defenders. It would also facilitate the pursuer in securing the whole property, in a division and sale, at a low price, to the defenders' prejudice.