A disposition a non domino by a couple to themselves in the same capacity was on its face a nullity and could not found prescriptive possession, the Sheriff Appeal Court has ruled.
Sheriff Principal Derek Pyle, Sheriff Principal Craig Turnbull and Appeal Sheriff William Holligan allowed an appeal by Ardnamurchan Estates Ltd, who claimed title to 5,000 square yards of ground in respect of which Michael and Karen MacGregor had in 1994 granted and registered a disposition to themselves. The sheriff ruled in favour of the defenders, distinguishing Board of Management of Aberdeen College v Youngson (2005) and holding the disposition valid.
Sheriff Principal Turnbull, delivering the opinion of the court, said it was not disputed that a person could not enter into a contract with themselves. While there were exceptions, such as if the person was acting in the capacity of trustee on one side, the respondents did not aver that any exception applied in this case. They argued instead that for the purposes of positive prescription, it was irrelevant whether any exception actually applied; the mere possibility meant the deed was not invalid on its face. But that was "a curious proposition, particularly in circumstances where the respondents have no averments which might be said to support such a proposition".
"In our opinion," he ruled, "the 1994 disposition is invalid ex facie. It is unnecessary to look beyond the 1994 disposition to reach such a conclusion. It affords complete and exclusive proof of its nullity – it purports to dispone the subjects from the respondents to the respondents in exactly the same capacity. The defect is intrinsic."
The court went onto express the view, contrary to a further argument for the respondents, that Aberdeen College had been correctly decided, and was also indistinguishable on its facts, in so far as relevant to the present issue. "Neither the existence of a special destination in the designation of the disponees, nor the purported grant of a new servitude right of access in the 1994 disposition formed a basis upon which the decision in Board of Management of Aberdeen College could properly be distinguished. The sheriff erred in so doing."
Further, had the court concluded that the 1994 disposition was ex facie valid, it would have concluded that its recording was not sufficient in respect of its terms to constitute in favour of the respondents a real right in the subjects in terms of s 1 of the Prescription and Limitation (Scotland) Act 1973: they could not at the same time intend to be both divested of property and invested in the same property, and there was no transfer of ownership in such circumstances.