Provident Association of London v. Cowan and Others [1913] ScotLR 120 (05 December 1913)

Provident Association of London v. Cowan and Others [1913] ScotLR 120 (05 December 1913)

The Court held that although the first deed was void, the second deed (disposition and assignation) was sufficient to constitute a valid real burden (ground annual) on the property in favour of the pursuers, either by direct constitution or by adoption and homologation of the personal obligation. The lands were thus validly charged with the real burden, and the pursuers were entitled to decree.

Citation
[1913] ScotLR 120
Parties
Pursuer: Henry Cowan and others, trustees for the Committee of the General Assembly of the Church of Scotland for the Endowment of Chapels of Ease; Defender: Provident Association of London, Limited; Defender: David Livingston Dryburgh; Defender: William Gray
Jurisdiction
Scotland
Judgment Date
05 December 1913
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal dismissed; interlocutor of Lord Ordinary adhered to.
Legal Topics
Real Burdens, Ground Annuals, Constitution of Security, Assignation of Debt, Personal Obligation, Feudal Conveyancing
Property Law Contract Law Real Burdens Ground Annuals Constitution of Security Assignation of Debt Personal Obligation Feudal Conveyancing

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Parties

Henry Cowan and others, trustees for the Committee of the General Assembly of the Church of Scotland for the Endowment of Chapels of Ease

Pursuer

Provident Association of London, Limited

Defender

David Livingston Dryburgh

Defender

William Gray

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether a ground annual can be constituted as a real burden by a deed containing no personal obligation by the granter.
  2. 2 Whether a deed assigning a non-existent ground annual can create a valid real burden or security.
  3. 3 Whether reference to an inept prior deed invalidates a subsequent disposition and assignation.

Ratio Decidendi

The Court held that although the first deed was void, the second deed (disposition and assignation) was sufficient to constitute a valid real burden (ground annual) on the property in favour of the pursuers, either by direct constitution or by adoption and homologation of the personal obligation. The lands were thus validly charged with the real burden, and the pursuers were entitled to decree.

Court Disposition

Appeal dismissed; interlocutor of Lord Ordinary adhered to.

Orders

  • Declared that under and in virtue of the disposition and assignation, the pursuers as trustees hold a valid and effectual conveyance of the heritable subjects in real security for payment of the yearly ground annual of £4, 5s. 11d., payable half-yearly in perpetuity.