Scottish Court of Session Decisions

Lord Kyllachy.—In this case I am, as I understand in common with both your Lordships, entirely satisfied with the judgment of the Dean of Guild. And I do not think that I could with advantage add anything to the very clear and able exposition both of the facts and law which we find in the note appended to his interlocutor.

I desire, however, to make one observation, which, in view of part of the argument lately submitted to us, it is perhaps right to make. The Dean of Guild has, it will be observed, decided the case upon a quite sufficient but perhaps in one view special ground, viz., that the National Heritable Property Association, Limited (the common authors of all the parties), possessing plainly a contractual right to enforce as against the appellants the building conditions expressed in their (the appellants') title, have by special assignation transmitted that contractual right to the respondents, doing so by express clauses contained in the several dispositions granted by them, which form the respondents' titles. He has repelled the objections for the trustees of William Cumming, who had no such assignation, and these objectors have not appealed against the Dean of Guild's judgment. It is consequently not necessary for the Court to decide or consider the question whether the successful respondents would have succeeded if in place of special assignations they had had to rely simply on the force of their several dispositions—that is to say, on the alleged legal presumption that every disposition of heritage includes impliedly a disposition or assignation of all lesser rights which pertain to the disponer, or which he has the right to convey. On that question, which the Dean describes as fair and arguable,

I do not doubt that your Lordships in affirming his interlocutor will desire to reserve your opinions. At the same time, having regard to the argument which was as I have said lately submitted to us, I for myself should like to say this, that I fully appreciate the importance and force of that argument, and have fully in view that when the question reserved comes up—as it some day may—and has to be decided, it will be necessary to consider carefully the important views expressed in certain passages of Lord Watson's opinions in the cases of Hislop v. MacRitchie and Stevenson v. Steel Company of Scotland, and also the passages in Stair and Erskine, viz., Stair, iii., 2, 1, and Erskine, ii., 7, 2, to which in the later case Lord Watson refers.

Lord Stormonth-Darling and Lord Low concurred.

The LORD JUSTICE-CLERK, who was absent at the hearing, gave no opinion.