Governors of Muirhead College v. Millar [1901] ScotLR 38_835 (29 May 1901)

Governors of Muirhead College v. Millar [1901] ScotLR 38_835 (29 May 1901)

The absence of delineation in the plan annexed to the 1869 deed does not render the superiors' obligation unenforceable; the obligation remains and, if not limited by the plan, extends to all unfeued parts. Reading the 1864 and 1869 deeds together makes the limits of the obligation clear. The pursuers, as superiors, cannot benefit from a technical defect for which their authors were responsible. Mutuality exists among the feuars, entitling them to enforce the restrictions inter se.

Citation
[1901] ScotLR 38_835
Parties
Pursuer/applicant: Governors of Muirhead College; Defender/respondent: Thomas Millar; Defender/respondent: William Lorimer; Defender/respondent: George Smeaton Rodger's Trustees
Jurisdiction
Scotland
Judgment Date
29 May 1901
Procedural Posture
Civil Declarator / Inner House, Second Division, Reclaiming Motion (appeal)
Outcome
Action dismissed; defenders assoilzied (absolved) from conclusions of the action.
Legal Topics
Feu Contracts, Building Restrictions, Mutuality of Obligations, Servitudes, Interpretation of Title Deeds
Property Law Real Estate Conveyancing Feu Contracts Building Restrictions Mutuality of Obligations Servitudes Interpretation of Title Deeds

Case Brief

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Parties

Governors of Muirhead College

Pursuer/applicant

Thomas Millar

Defender/respondent

William Lorimer

Defender/respondent

George Smeaton Rodger's Trustees

Defender/respondent

Procedural Posture

Civil Declarator / Inner House, Second Division, Reclaiming Motion (appeal)

Legal Issues

  1. 1 Whether absence of delineation in plan annexed to 1869 deed renders superiors' obligation unenforceable
  2. 2 Whether mutuality exists among feuars to enforce building restrictions inter se
  3. 3 Whether technical defect in plan bars enforcement of restrictions

Ratio Decidendi

The absence of delineation in the plan annexed to the 1869 deed does not render the superiors' obligation unenforceable; the obligation remains and, if not limited by the plan, extends to all unfeued parts. Reading the 1864 and 1869 deeds together makes the limits of the obligation clear. The pursuers, as superiors, cannot benefit from a technical defect for which their authors were responsible. Mutuality exists among the feuars, entitling them to enforce the restrictions inter se.

Court Disposition

Action dismissed; defenders assoilzied (absolved) from conclusions of the action.

Orders

  • Interlocutor of the Lord Ordinary recalled.
  • Defenders assoilzied from the conclusions of the action.