The Inner House of the Court of Session has published a judgment in a case which raised the issue of the extent to which a pursuer requires to establish his own title to land in circumstances where a defender whom he is trying to remove does not have any title but avers that the land may be owned by a third party.
The court held that the pursuers had demonstrated an ex facie valid title, which was “good enough” to pursue an action against the defender, who advanced no competing title.
The Lord Justice Clerk, Lord Carloway (pictured), sitting with Lady Paton and Lord Bracadale, heard that the defender Thomas McAllister, who had occupied the land known as Muirfoot Tollhouse, Rigside, Lanarkshire since at least June 2006, used it for pallet storage and lorry parking in connection with his business, which he conducted from adjacent land owned by him.
The pursuers Douglas & Angus Estates and Richard Carmichael averred that they were pro indiviso proprietors of the land and that the defender occupied it without right or title, but the defender denied that the pursuers own the land, although he asserted no right or title himself.
The second pursuer’s title derived from a disposition to him by the Trustees of the late Sir Windham Eric Francis Carmichael Anstruther of Anstruther and Carmichael, Baronet, recorded in the General Register of Sasines for the County of Lanark on 30 March, 1993.
The disposition conveyed the lands and estate described in a disposition by the Trustees of the late Sir Windham Robert Carmichael Anstruther in favour of Sir Windham Eric, dated 20 and 21 January 1933 and recorded on 26 June 1934 but under exception of several subjects described in deeds detailed in a schedule to the 1993 disposition. Among the 145 items of excepted land in the schedule were lands and farms described in a disposition to the first pursuers, which was recorded on 16 May 1947.
The first pursuers claimed to hold a one half pro indiviso share of “Muirfoot Tollhouse” in terms of a disposition from the second pursuer recorded on 6 July, 2009.
However the deed, rather unusually, narrated that doubt had been expressed about whether the subjects had been excluded from the 1947 disposition by Sir Windham Eric to the first pursuers. It narrated that the first pursuers accept that the Tollhouse was not included in the 1947 disposition.
The 2009 disposition conveyed to the first pursuers a one half pro indivisoshare of “Muirfoot Tollhouse” as delineated on a plan, which included the relevant subjects. These subjects were, in turn, said to form part of the subjects conveyed in the 1933 disposition.
The defender averred that the Tollhouse land was not conveyed to the second pursuer in terms of the 1993 disposition. Therefore, it is and was not owned by him and could not have been disponed by him to the first pursuers, to the extent of a one half share, in terms of the 2009 disposition.
The defender relied on the terms of his own title to the adjacent land, namely a Feu Charter of a “piece of ground at Muirfoot Toll” granted by Sir Windham Eric in favour of the defender’s immediate predecessor in title, recorded on 17 February 1944.
On 10 March 2014, the sheriff found that the defender’s averments were irrelevant and sustained the pursuers’ general plea to the relevancy, granting decree of declarator that the defender occupied the land without any right or title, and removing as craved.
The sheriff held that each of the pursuers had produced a prima facie title to the land and that if the defender wished to challenge the pursuers’ titles he had to produce a contradictory title.
On 9 June 2014 the Sheriff Principal refused the appeal and adhered to the interlocutor of the sheriff, after ruling that the defender’s “belief” that the disputed land was owned by the successors of Lanark County Council was irrelevant and that there was nothing in the defender’s averments that would have allowed the sheriff, after proof, to declare that the pursuers had not established a prima facie title.
Before the Inner House, the defender submitted that it was not clear whether the disputed land had been conveyed in the 1933 disposition at all and that a proof was required to determine that issue, but the appeal was refused.
Delivering the opinion of the court, the Lord Justice Clerk said: “Exactly what may be regarded as an ex facie valid title in a pursuer’s favour may depend upon its particular terms.
“As matters stand, but no doubt subject to review in a competition with a third party should further dispositions be located, and using a necessary double negative in the circumstances, it cannot be said that the 1933 disposition did not carry the Muirfoot Tollhouse land.
“If the 1947 disposition later included the land, the first pursuers would have an ex facie valid title to it based on that deed. If it did not, title would remain with the second pursuer based upon the 1993 and 1933 deeds; subject to his later conveyance of half of the land to the first pursuers in 2009.
“Either way, the pursuers, or one or other of them, have an ex facie valid title which is good enough to pursue an action against a defender who advances no competing writ.”