HAZEL FRASER AGAINST IAN JAMES FRASER
AGAIN2014SCBANF60
A15/13
SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT BANFF
Judgment
Of
Sheriff Philip Mann
In causa
Hazel Fraser, residing at Two Acres, Burnside Wood, Turriff, AB54 5PP (Assisted Person)
Pursuer
Against
Ian James Fraser, residing at The Shieling, Old School Road, New Byth, Turriff, AB53 5PD
Defender
Banff 17 November 2014
The sheriff, having resumed consideration of the cause, sustains the defender’s preliminary plea in law number 1, repels the pursuer’s pleas in law and dismisses the action; Reserves the question of expenses and appoints parties to be heard thereon within the Sheriff Court, Low Street, Banff on 20 November 2014 at 10:00am
Sheriff Philip Mann
Note
1. Introduction
1.1 This is an action between parties who are, or were, husband and wife. The wife pursuer seeks, firstly, a declarator that she is entitled to insist in an action of sale of part of certain property of which the parties are pro indiviso proprietors and division of the proceeds, including, specifically, payment of a sum of £4,000 by the defender to the pursuer; and, secondly, declarator that she is entitled to insist in an action of division of another part of the same property.
1.2 The parties had entered into a minute of agreement dated fourteenth and registered in the Books of Council and Session on sixteenth both days of September 2009. The minute of agreement provides for what is to happen to the property which is the subject of this litigation. It firstly provides that part of the subjects be sold and the proceeds divided between the parties subject to payment to the pursuer of the sum of £4,000 out of the defender’s share. This is reflected in the first crave. It secondly provides that the parties will seek to obtain planning permission for the development of the balance of the property which will then be sold with the proceeds being divided between the parties. It is this part of the property that is the subject of the pursuer’s second crave. However, in that the second crave seeks division, it departs from the terms of the minute of agreement.
1.3 Implementation of the minute of agreement has proved to be problematic because of various difficulties between the parties which are rehearsed in the pleadings but which do not need to be repeated in any detail here.
1.4 The pursuer has a preliminary plea being a general plea to the relevancy of the defences. The defender has a preliminary plea being a general plea to the relevancy and specification of the pursuer’s averments. Each of the pleas is supported by a rule 22 note.
1.5 I heard the parties in debate upon these preliminary pleas on 23 October 2014. The pursuer was represented by Mr Duffil, solicitor. The defender was represented by Mr Winchester, solicitor. Following the debate I made avizandum.
2. The Pursuer’s Rule 22 Note
2.1 The pursuer’s rule 22 note asserts that an action of division or division and sale, not being an equitable remedy, may be taken as of right by any person having title and interest to do so. Since the defender has admitted that the pursuer has title and interest the pursuer is entitled to have the subjects divided or, if the subjects are not divisible, to have the subjects sold. Mr Duffil did not depart from this at the debate.
3. The Defender’s Rule 22 Note
3.1 The defender’s rule 22 note makes two points. Firstly, it asserts that the description of the subjects in the pursuer’s craves is so lacking in precision as to disable the court from granting an enforceable order. Secondly, it asserts that there are no averments to support that part of the pursuer’s crave one which seeks payment of the sum of £4,000. Mr Winchester departed entirely from the first point and confirmed that he was now satisfied that the lack of precision in describing the subjects had been cured by amendment. He argued the second point.
3.2 However, Mr Winchester went on to maintain, without any foundation in the rule 22 note, that the remedies sought by the pursuer were not available to her in face of the minute of agreement. He also made submissions relating to the description of the subjects in crave two unrelated to the point raised in the rule 22 note. Rule 22.1(4) provides that at any proof before answer or debate, parties may on cause shown raise matters in addition to those set out in the note. Mr Winchester did not seek to show cause but Mr Duffil took no objection to the matters being raised. It was clear enough to me in the course of the debate that Mr Duffil had anticipated Mr Winchester’s argument and so there was no suggestion that he had been ambushed. The matters having been raised and argued at debate without objection I have taken the view that it is open to me to consider them.
4. The Debate
4.1 I was referred to a number of authorities in the course of the debate but I think that I need only refer to three of them for the purposes of this note. These were the case of Grant v The Governors of George Heriot’s Trust and Others 1906 13 S.L.T. 986, the case of Morrison v Kirk 1911 (2) S.L.T. 355 and the case of Upper Crathes Fishings Limited v Bailey’s Executors 1991 S.L.T. 747.
4.2 Mr Winchester maintained that in so far as the pursuer sought payment of the sum of £4,000 in her first crave her averments were irrelevant. Effectively, the pursuer was seeking payment of that sum as an aspect of the sale and division which she sought under the direction of the court. However, her averments were directed to the pursuer’s right to payment of that sum in terms of the minute of agreement. If the pursuer were to obtain decree in terms of her first crave there would be nothing to stop her seeking a further payment of the same amount in terms of the minute of agreement.
4.3 Dealing with the question whether the pursuer was entitled to pursue this action, Mr Winchester drew attention to the speech of Lord Salvesen in Morrison v Kirk where he said, at page 356:
“Unless a pro indiviso proprietor has barred himself by contract from resorting to an action of division or sale he has an absolute right at common law to insist in such an action. If it should turn out that division is impracticable or would operate unfairly, then his remedy is to have the properties sold and the price divided.”
This was clear authority for the proposition that if the parties have contracted as to how a property is to be divided or sold it is not open to either of the parties to insist in an action of division or sale and division. The pursuer could not get past the minute of agreement. Her true remedy was an action of implement of the minute of agreement.
4.4 Mr Winchester highlighted a difficulty with the pursuer’s second crave. This was that the property in respect of which she sought division was described as being certain larger subjects under certain exceptions. The problem was that the subjects referred to in the first crave were part of the larger subjects. They ought to have been excluded from the description of the subjects in the second crave but had not been. The result of this was that the pursuer appeared to be seeking two separate and inconsistent remedies in respect of the subjects described in the first crave.
4.5 Mr Winchester moved for dismissal of the action.
4.6 Mr Duffil referred to the speech of the Lord President (Hope) in the case of Upper Crathes Fishings Limited v Bailey’s Executors where he said, at page 750:
“I can find nothing in the other authorities, all of which have been dealt with fully by the Lord Ordinary, to suggest that the right to resort to a division or sale is anything other than an absolute right.”
He maintained that the right to resort to division or sale and division was a common law right which could be resorted to even in the face of a contract such as that embodied in the minute of agreement in this case.
4.7 The absolute nature of the remedy was emphasised by the Lord President in the case of Grant v The Governors of George Heriot’s Trust and Others. At page 991 he said:
“But the property was common property. Now, clearly so long as it remained common property there could be no alteration in the scheme of its occupation, because, of course, it is familiar law that where property is held in common you cannot alter that property by disposition or otherwise without the assent of all the common proprietors. They must concur in any act done to the common property, and accordingly it made a complete protection for each of the owners, pro indiviso, of this common property against any action of the others which would alter the status quo. The framers of this disposition went one step further. They seemed 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’. I have no doubt whatsoever that that clause is a nullity …………… The position of common property is very peculiar, because all the owners hold together in common, and they have, if I may so express it, a metaphysical right in every minutest atom of which the property is composed; and as it would be from the motive of public policy an absolutely cumbrous state of matters to keep 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. Therefore I have no doubt that that provision that was put in was bad.”
4.8 Mr Duffil acknowledged what had been said by Lord Salvesen in Morrison v Kirk but said that that had to yield to what the Lord President (Hope) had said in the Upper Crathes Fishings case in the passage already quoted. He maintained that the pursuer could not be compelled to remain in common ownership. The minute of agreement did not bar the remedy. Rather, it reinforced the common law right. In any event, the defender did not aver that there had been any contracting out of the right to seek division or sale and division.
4.9 Mr Duffil moved that the defences be repelled, although he accepted that there might have to be a proof restricted to that part of crave one which sought payment of the sum of £4,000. He did not respond to Mr Winchester’s comment on the description of the subjects in crave two.
5. Discussion and Decision
5.1 There is irresistible force in Mr Winchester’s submission that the pursuer is not entitled to the remedy that she seeks in the face of the minute of agreement. Mr Duffil has misconceived the meaning of what the Lord President said in Grant v The Governors of George Heriot’s Trust and Others. The Lord President said that the common proprietors “must concur in any act done to the common property”. That clearly acknowledges that it is open to the parties to contract as to how the common property is to be dealt with. When the Lord President said that “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” he was simply saying that no proprietor could be compelled to remain as a common owner. He was not referring to the method by which the bonds of common ownership could be broken. The word “pursuing” was not an exclusive reference to an action of division or division and sale. One method of pursuing a division or a division and sale would be by contract. Another method, where the parties are unable to agree, would be by way of court action.
5.2 It can be seen, therefore, that there is no conflict between the Lord President in Grant v The Governors of George Heriot’s Trust and Others and Lord Salvesen in Morrison v Kirk. The Lord President (Hope) did not introduce any conflict in the Upper Crathes Fishings case when he said that he could find no authority “to suggest that the right to resort to a division or sale is anything other than an absolute right.” Here, too, Lord Hope was not referring exclusively to an action of division or sale and division. Nor was Lord Hope contradicting himself when he said in the same case at page 749:
“I think that it is worth noting at this stage that the conclusion that the right is an absolute one does not mean that there can never be circumstances in which its exercise can be denied. Lord Salvesen recognised this much when he said that the proprietor has an absolute right to resort to an action of division or sale unless he has barred himself by contract from resorting to it. In this respect the right to insist in an action of division or sale is no different from any other right of an absolute nature which an individual may enjoy. It is always open to a person to deprive himself of his rights by contract, and I think that he may also be deprived of them, according to the ordinary principles of law, by the operation of personal bar.
And:
“That the individual's right of action may be barred by contract is not in dispute in this case, and in my opinion there is no longer any room for doubt on this point.”
5.3 Far from excluding the right to have the bonds of common ownership broken the minute of agreement provides the method by which that will be achieved. But, by contracting in this way the parties have ousted the jurisdiction of the court to order division or sale and division. Whilst the contract remains in force neither party is entitled to resort to the court. In the absence of averment that the contract embodied in the minute of agreement is at an end and that the parties are no longer bound by it the pursuer is bound to fail in this action. The pursuer has no such averment. On the contrary, the pursuer seems to be asserting that the contract embodied in the minute of agreement is binding but that the defender has not adhered to its terms. Accordingly, the pursuer’s averments are irrelevant and the action falls to be dismissed.
5.4 Were I to be wrong to dismiss the action on the above basis then, in my view, there would need to be a proof to clarify the factual situation and the state of the title to the property before answering the parties’ preliminary pleas, given the difficulties highlighted by Mr Winchester relative to the pursuer’s claim for payment of the sum of £4,000 and the description of the property in crave two.
6. Expenses
6.1 I was not addressed on the question of expenses. I have assigned a hearing to deal with that issue.