The Duke of Argyle holding the plenum dominium of the estate of Castle Campbell of the Crown, in 1796 feued Hillfoot, part of the estate, to Drysdale, reserving coal and coalheughs. In 1726 Moir acquired Drysdale’s feu. In 1808 the Duke conveyed the estate remaining in him to Tait, who in 1811 obtained a Crown charter of resignation and confirmation. Tait’s estates were sequestrated in 1828, and in 1837 his trustee, on the narrative that he had exposed for sale ‘the superiority and feuduty of the lands of Hillfoot,’ and that Moir had been preferred to the purchase, disponed to Moir ‘all and whole the toun and lands of Hillfoot . . all as at present possessed’ by Moir. The warrandice clause excepted the feurights or infeftments granted by the disponer’s predecessors; there was an assignation of the Crown charter of 1811 with its unexecuted precept of sasine. Moir was infeft on the precept. In 1860 Tait’s trustee disponed to Orr the lands of Castle Campbell with a description which included the lands of Hillfoot and the ‘coals and coalheughs,’ and in 1890 Orr raised an action against Moir’s trustees to have it declared that he possessed the coal in Hillfoot in virtue of the conveyance of 1860. The defenders relied on the conveyance of 1837.
Held ( rev. the judgment of the Whole Court) that the pursuer was entitled to the declarator sought, on the ground that the deed of 1837 conveyed the superiority of the lands alone, and did not include the coal.
Judges:
Lord Chancellor (Herschell)) and Lords Watson, Ashbourne, Macnaghten, and Field
Citations:
[1893] UKHL 591, 30 SLR 591
Links:
Jurisdiction:
Scotland
Land
Updated: 31 January 2022; Ref: scu.633297