By deeds of mortification certain sums were assigned to the Town Council of a burgh upon trust for the benefit of professorships in a University. The Town Council invested the money in land, which was conveyed to their ‘Master of Mortifications,’ a municipal functionary, and his successors in office, for behoof of the beneficiaries. Thereafter the ‘Master of Mortifications,’ instructed by the Town Council, sold the land for a yearly feuduty. The purchaser, who was in fact an agent of the Town Council, surrendered the property to them, and they were infeft upon it. Soon afterwards the Town Council, upon a representation that they were proprietors of the ground, obtained from the Crown a grant of the salmon fishings in the sea opposite the lands purchased. By these means the Town Council largely enhanced its own property and income, but restricted the beneficiaries to the feuduty.
In an action of declarator, and c., brought more than forty years afterwards by the University, with concurrence of two professors, Held (aff. judgment of Court of Session) (1) (a) that the Magistrates were trustees for the University under the mortifications, that the sale was a nullity and unprotected by prescription, and ( b) that the fishings were subject to the trust; and ( 2) that the cause should be remitted back to the Court of Session to consider the question of retrospective accounting and liability for arrears.
Judges:
Lord Chancellor (Cairns), Lord Hatherley, Lord O’Hagan, Lord Blackburn, and Lord Gordon
Citations:
[1877] UKHL 490, 14 SLR 490
Links:
Jurisdiction:
Scotland
Land
Updated: 12 July 2022; Ref: scu.639643