The institutional writers

We may first consider how much of this Roman learning is reflected in the treatment of the institutional writers, and then consider the attitude of the Scots courts themselves.

The second paragraph^[342] deals explicitly with the division of common property. The only case treated is that of co-heirs, for which it appears there had been some dispute as to the circumstances under which the inheritance might be divided. Craig cites the view of ‘some authorities’ that all co-heirs had to agree to the division. The reason adduced by these authorities (omitted in Clyde’s translation) is the civilian principle under which the person who prohibits is in the stronger legal position (melior est condicio prohibentis). Craig himself states the law to be that any one heir might insist on a division against the opposition of the others, and cites the Digest text already noted^[343] for the proposition that any agreement between the co-heirs not to divide was void unless limited to a particular period of time.

Stair^[344] cites the Roman actions familiae erciscundae and communi dividundo^[345] in the course of his discussion of the obligation of restitution. Within this obligation, he says, ‘is comprehended the obligation of divi­sion, whereby what we possess in common with others, or indistinct from that which they possess, we are naturally obliged to divide it with them, whensoever they desire to quit that communion, and we are not obliged thereto by any contract or delinquence’.^[346] After noting that the Roman actions were derived from this ground, he adds that, since they chiefly concern immoveables, he will deal with them in that context. In fact the only other explicit references to the actions familiae erciscundae or communi dividundo are made in the context of partnership (society), where the elliptic nature of the reference does not really permit any useful conclusion to be drawn as to the scope of these remedies in Scots law.²⁵

In book 4 Stair discusses the procedure for effecting a division of property held in common, but does not in fact mention the actio communi dividundo.

Bankton,²⁷ following Stair, introduces a reference to the actiones fami­liae erciscundae and communi dividundo in the context of restitution.²⁸ Nothing is said as to the scope of these actions in Scots law. The brieve of division is stated to apply to ‘co-heirs, co-adjudgers or other conjoint proprietors’. A note of the special rules applicable to heirs-portioners is added.²⁹ The phrase ‘other conjoint proprietors’ suggests a wider sphere of application for the brieve than the range of examples given by Stair.

Erskine³⁰ speaks of the ‘communion of goods’ as a quasi-contract, ‘for where two or more persons become common proprietors of the same subject by legacy, purchase or gift without the view of any copartnership an obligation is thereby created among the proprietors, without any covenant, by which they are mutually obliged to communicate the profit and loss arising from the subject while it remains common’. He then notes that ‘common subjects’ in Roman law were subject to division by the action communi dividundo, adding that ‘such division when limited to moveable subjects has been always competent by the law of Scotland’.³¹ There is an implication here that immoveables by Scots law are not subject to division in the same way.

²⁶        4.3.12.

²⁷        An Institute of the Law of Scotland. I have used the edition published in 1751.

²⁸        1.8.36.         ²⁹ 1.8.38.

³⁰        An Institute of the Law of Scotland. I have used the edition by J. Badenach Nicholson, published in 1871.

³¹        Inst.3.3.56.

heirs-portioners might secure a division of the land they inherited. The only other example given by Erskine of land which Scots law permitted to be divided is that of ‘commons or commonties’, division of which was authorised by a statute of 1695. One might, therefore, extract from Erskine the conclusion that the Roman action communi dividundo was accepted into Scots law only with respect to the division of moveables, and that land held in common was not divisible unless the common (feudal) law of Scotland or the legislature had developed a special remedy.

An important point emerges from Erskine’s analysis, namely that the relevance for Scots law of the old Roman actio communi dividundo is confined to the case of co-ownership of moveables.

Not until Bell³² is there a systematic discussion of the nature of rights in common. He points out that the previous Institutional writers have not adequately distinguished between three kinds of rights in common:

1. Common Property, in which the several parties have, pro indiviso, the same equal but undivided right, each being entitled to the joint use and enjoyment of the subject, and mutual consent being necessary in all acts of management or disposal; 2. Common Interest, in which there is a mixture of property in one, restrained or qualified by an interest in another for the maintenance and preservation of the subject; and 3. Commonty, in which a right, not of common property, but only of common use, is conferred on several persons by the proprietor of the subject.³³

Of particular importance is the distinction between common property and commonty, only the former arguably falling within the ambit of the actio communi dividundo. Bell himself makes no reference to this action or directly to the Roman law, although certain of the rules which he cites show a clear Roman origin. Among the rules for the management of common property he lists in re communi melior est conditioprohibentis (for the case of property held in common the person who prohibits is in the better legal position), which is derived from D.

^{color=black face="Times New Roman">32}        Principles of the Law of Scotland. I have used the tenth edition, by W. Guthrie, published in 1899.

³³        Ibid., para. 1071.          ³⁴ Ibid., para. 1075. of the division of common property,³⁵ he states ‘it is a rule that no one is bound to remain in community, but may insist for a division’. For this topic he states the following rules: (1) if the parties cannot agree, the subject, where possible, must be divided, co-adjudgers formerly being entitled to have the property adjudged by them divided by brieve of division, replaced later by judicial sale;³⁶ (2) joint proprietors may still have the subject divided by brieve of division or by an action of declarator and division;³⁷ (3) if the subject cannot be divided, it should be sold at the instance of any of the co-owners and the price divided between them;³⁸ and (4) heirs-portioners, females succeeding jointly ab intestato, are entitled to equal shares, subject to some special benefits accorded the eldest.³⁹

Although the institutional writers undoubtedly show some influence from the Roman law in their treatment of common property, notably in the adoption of the principle that no one might be forced to remain in communion against his own will, the attention paid to the actio communi dividundo is small. Probably the classification of the action in the Insti­tutes of Justinian under the head of quasi-contract was responsible for its inclusion by the Scottish writers under the head of restitution, although nowhere is the Justinianic source directly acknowledged. But it does not seem that there is any firm institutional authority for the proposition that the actio communi dividundo was the model from which the brieve of division, applicable where co-owners of land sought a separation of interests, was derived. This remedy appears to have been treated as a part of the indigenous customary law. Erskine is the writer who most clearly demonstrates such an approach, but it may have been implicit in the thought of Stair, Bankton and Bell. It is the judges who firmly established the actio communi dividundo as the basis of the general law of co­ownership in Scotland.

The cases

Not all the cases considered below make an explicit reference to the actio communi dividundo or even to Roman law. Indeed broadly they may be divided into two groups: those which appeal to the Roman law as a source for the rules to be adopted in Scotland, and those which make no such appeal but simply discuss and develop the rules governing ownership in common as part of Scots law itself. The latter group has been included to

³⁵ Ibid., para. 1079.            ³⁶ Ibid., para. 1080.

³⁷ Ibid., para. 1081.            ³⁸ Ibid., para. 1081, 2.

³⁹ Ibid., para. 1083. See also the brief remarks in J. M’Laren (ed.), Commentaries on the

Laws of Scotland (7th edn, Edinburgh, 1870), vol. I, 62. show the main outlines of the way in which the remedy for division or sale of property held in common has been deployed in Scots law, but no attempt has been made to offer an exhaustive account of the law relating to common ownership. As will be seen, the cases of this group evidence a state of the law broadly consistent with that which obtained in Roman law as to the circumstances governing the availability of the actio communi dividundo.

A point related to the above concerns individual judicial preference (or indeed the preference of counsel) for an appeal to Roman law. Some judges and counsel make much of this; others prefer to discuss the position purely in terms of contemporary Scots law itself. However, it should be noted that, even where a decision makes no express mention of Roman law, it is often founded either on earlier decisions which do, or on broader principles of the law which are unanimously accepted as derived from the Roman law, such as the principle that no one should be bound in communion where he is unwilling. Something further on these issues will be said in the concluding remarks.

Prior to the opinion of Lord Rutherfurd in Brock v. Hamilton (1852) the courts showed some uncertainty in the determination of the principles upon which any co-owner might be entitled to seek a division of the land. The earliest case to be discussed is that of Cowie v. Cowies, which came before the courts at various times during the years 1707 and 1708.^[347] It concerned the claims which arose between five sisters who had inherited an estate as heirs-portioners. The first issue raised concerned the entitle­ment of the eldest sister to the mansion house without the necessity of paying compensation to the others. The latter had argued on the basis of a number of civilian authorities that under the iudicium familiae erciscun- dae there should be equal division of the property falling within the inheritance, or, if that was not possible, that compensation should be paid by those who had received more to those who had received less. However, the court rejected this appeal to civilian authority on the ground that by the feudal law obtaining in Scotland the custom was that the eldest daughter should receive the mansion house without the obli­gation to pay compensation to her sisters, Stair 3.5.11 being cited as decisive in this respect. The second issue concerned the eldest daughter’s claim that, in addition to the mansion house, she was also entitled to the orchard appending to it, the court by a ‘scrimp majority’ holding in her favour.

The third and final issue concerned the claim of the eldest sister that the remaining lands should be divided between her and her sisters on the basis that she would receive that portion of the land adjacent to the orchard with compensation being paid to her sisters should it be more valuable than the portions left for them. In support of her claim she cited two texts from the Corpus Juris Civilis, Inst.4.17.4,5 and D.10.3.2.1.⁴¹ On this matter the court could not agree. Some judges thought that the old brieve of division was available, others that there was no power in the court to order a division, since no specific Act of Parliament or other law could be found in Scots law authorising such a division. The report of the case concludes with the observation that the court demurred as to its power.

Why should there have been doubt as to the availability of the brieve of division? Although the lus Feudale is not cited specifically by the court, the judges may have had in mind the difference of opinion to which Craig refers. Some authorities had in effect treated land held in common by heirs-portioners in the same way as a commonty: division was not to be permitted without the consent of all those entitled. The court in Cowie may therefore have considered the principle with respect to co-heirs to be insufficiently settled. The extent to which the judges, or some of them, regarded the availability of the brieve of division as controlled by the feudal law or by the principles of Roman law cannot be determined.

Stewart v. Feuars of Tillicoultry in 1739⁴² concerned the interpretation of the Act of 1695 which regulated commonties. One may merely note an argument made by the pursuers to the effect that ‘common properties might have been divided upon the footing of the common law, actione communi dividundo>,⁴³ This shows that lawyers were prepared to argue that Scots law had received the principles governing the actio communi dividundo, at least to the extent of permitting division of land held in common ownership.

Milligan v. Barnhill in 1782⁴⁴ illustrates a different legal approach being taken to the competence of Scots law to order division of land held in common. The case arose from a partnership between the pursuer and defender in a brewery business, each being entitled pro indiviso to one half of the premises. Upon the dissolution of the partnership one of the former partners brought an action to compel the other either to buy his share at a certain price or to sell him his own share at the same price, or to agree to a public sale followed by division of the price. The defender argued that the enactment of the 1695 Act relating to commonties permitted the inference that at Common law proprietors holding pro indiviso shares in property could not be compelled to divide except in the case of a ship. This argument is directly opposed to that raised by the pursuer in Stewart’s Case.

⁴¹ See above, p. 161.

⁴² M.2469.

⁴³ M.2469, 2470.

⁴⁴ M.2486.

The pursuer in Milligan replied to the effect that the right of a co-owner in a ship to insist upon a division was only an example of a general rule recognised by the Common law, according to which the differing interests of joint proprietors could be effectively realised in one of the ways now proposed. In support of this proposition the pursuer cited Stair⁴⁵ and Bankton,⁴⁶ and instanced the same rule as obtaining in Roman law. Apart from certain passages from the Codex,⁴⁷ he cited D. 10.2.55, which stated that, where under the actiones familiae erciscundae or communi dividundo a division proved in practice to be impossible, the judge might award the whole of the property to one of the claimants. He also argued that, had the remedy been sought in the context of the actio pro socio while the partnership still subsisted, the defender would have had no plea.

The Bench, finding for the pursuer, succinctly observed:

No person in such a case as the present is to be compelled to remain longer in communione then he chooses. Long before the act of 1695 the brief of division was known respecting property in lands. That statute, with a view to the improvement of agriculture, refers to the particular nature of common ties and does not relate to common property in general. With regard to this, as in the case of heirs portioners, such remedies as those here proposed, must always have been com­petent.⁴⁸

Although the court in this passage does not directly refer to Roman law or mention the actio communi dividundo, it clearly accepted as received into Scots law the basic Roman and civilian principle according to which any co-proprietor could insist upon a division of the property. This applied irrespective of whether the ground of the common ownership had been a partnership or some other legal state of affairs such as an inheritance. Further, the court may have accepted the pursuer’s argument, derived from texts of the Codex and the Digest, that, where the property was difficult to divide physically, the appropriate course was a sale of the whole and division of the price, unless any one owner was prepared to purchase at a fair price the shares of the others.⁴⁹

Scots law had to wait until 1852 for an authoritative judicial exposition of the main principles governing division of land held in common. In that year Lord Rutherfurd in the case of Brock v. Hamilton⁵⁰ delivered a judgment which has since been accepted as the locus classicus. An action of declarator for division and sale was raised at the instance of the trustee

⁴⁵ Walker (ed.), Institutions 1.7.15.               ⁴⁶ Institute I i.40.               ⁴⁷ C.3.37.1, 3.

⁴⁸        M.2486, 2487.

⁴⁹        Some decades later it was held in the case of Stewart v. Simpson (1835,14 S.72), where the essential facts were similar to those of Milligan, that the pursuer’s right was that of sale of the premises held in common and division of the price. It was not necessary first for either of the former partners to attempt to buy the share of the other.

⁵⁰        Reported in a note to Anderson v. Anderson (1857, 19 D.701). in bankruptcy of one of two pro indiviso proprietors of certain lands in Glasgow. Both parties had agreed that in practice the lands were incap­able of division. The defender, founding on Erskine 3.3.56, had appar­ently first argued that the right to division in Scots law was in principle limited to moveables and that, with respect to immoveables, the brieve of division lay only as between heir and tercer or as between co-heirs. However, the court found, in the light of Stair’s exposition of the law, that this contention was unfounded. Lord Rutherfurd stated, ‘There can be no question it is thought, after the authority of Lord Stair, referring to the Roman law, that an action for division of heritable property held pro indiviso, though by singular titles, was imported into the law of Scotland in the form of a brief of division in very ancient times.’^[348] Erskine’s remarks on this point were to be discounted. His Lordship thus inter­preted Stair as stating that the brieve of division itself was modelled on the actio communi dividundo. As has been seen, there is some doubt on this point. A possible interpretation of Stair’s language, notably his assertion that, since the actio communi dividundo is concerned mainly with immove­ables, he will deal with it in that context, would support Lord Ruther- furd’s conclusion. Nevertheless, it is perhaps odd that Stair says nothing explicitly about the Roman action when discussing the Scots brieve of division.

In reviewing the authorities Lord Rutherfurd made two important points. First, he asserted that ‘we have borrowed from the Roman law, and introduced into our common law actions of the same nature and import with those of the Roman law familiae erciscundae^[349] and communi dividundo’^[350] Secondly, he cited the cases of Milligan and Stewart⁵⁴ as showing that upon the principles of Roman law, incorporated into Scots law, an action for division lay with respect not only to property actually held in co-partenary but also to that held under circumstances creating quasi ex societate the relation of co-partenary.

The defender then accepted this view of the law, but founded his argument upon the fact that, although an action for division might be competent should the lands in fact be divisible, where they were not physically divisible no action for sale and division of the price was competent. His point was that Scots law had borrowed from Roman law merely the right of a co-proprietor to insist on a division of the property as against the others. The question whether the property should be sold and the price divided related merely to the form of the remedy, and an affirmative answer could not be derived from the principles underlying the actio communi dividundo.

This argument was decisively rejected by Lord Rutherfurd. He found that the basic principle of Roman law applicable to the case, namely that ‘no one should be bound to remain indefinitely in communione with another or others as proprietors of a common property’,⁵⁵ entailed not only the right at the instance of any one of the co-proprietors to a physical division but also, should such a division prove to be impracticable, the right to have the whole property sold and the price divided. The Civil law itself, like the European systems influenced by it, had permitted the public sale of the property as a last resort. This was permitted not only in the case of obligations arising from contract (societas) but in those arising from quasi-contract, as through succession, where the Roman law treated the co-proprietors as though they were partners and accorded similar remedies.

In Scots law, following Roman law, the primary object of the action for division or sale was physical division of the property between the co­proprietors; but should this not be practicable either because the property was incapable of physical division or because the parties could not agree on the amount of compensation that should be paid where one of them wished to acquire the whole, ‘public sale, under the authority of the Court, becomes plainly the only course’.⁵⁶ His Lordship added that, whereas the pursuer was not bound to advance equitable considerations entitling him to the remedy of physical division of the property or, should that be inappropriate, to sale and division of the price, it was open to the defender to show that division or sale might in the circumstances of the case be inequitable. Both the observations as to ‘public sale’ and ‘equity’ caused some difficulty in later cases.⁵⁷

The decision in Brock v. Hamilton settled three points with respect to the law of Scotland, points which had been raised and discussed before, but which had not been fully elaborated or authoritatively settled. First, the principles underlying the actiones familiae erciscundae and communi dividundo, in particular that which stated that no one should be bound to remain in communione when unwilling, were stated to be part of Scots law. Secondly, these principles applied equally to heritage as to moveables, and equally to persons holding in common as partners and to those

⁵⁵ 19 D.701, 703.            ⁵⁶ Ibid.

⁵⁷ See the cases of Crathes Fishings Ltd v. Bailey’s Executors and Campbell v. Murray discussed below.

holding in common on some other ground. Thirdly, under these prin­ciples there was a right not only to the physical division of the property but also to its sale with subsequent division of the price. The latter right was presented as subordinate to the former in the sense that in Roman as in Scots law the right to sell and divide the price was available only should the physical division of the land between the co-proprietors prove to be impracticable. One point of uncertainty did perhaps remain. Some of Lord Rutherfurd’s language could be construed in the sense that all the rules governing the applicability of the actiones familiae erciscundae or communi dividundo had been received into Scots law. Whether he actually meant this should be regarded as doubtful.

After the decision in Brock v. Hamilton problems continued to surface both with respect to the relationship between the right to divide physically and the right to sell and divide the price, and with respect to the former right itself. In Anderson v. Anderson Lord Deas stated that at Common law the right of the pro indiviso proprietor was ‘to have the subject divided, and, if not divisible, to have it sold. The ordinary rule is that no man is bound to remain longer in communion than he pleases.’⁵⁸ The implication of this remark, admittedly obiter, is that the right to have the property divided physically is primary and that the right to have it sold and the price divided is subsidiary, being available only should the property not be divisible.

In style='font-style:italic'>Thom v. MacBeth⁵⁹ the question as to what is meant by ‘divisible’ was raised. The defender, who was one of the proprietors with a pro indiviso interest in a landed estate, argued that the estate should not be divided at all, or, if the interests of the proprietors were to be split, then the estate should be divided physically. It was held by the Inner House that this contention could not be sustained, and that the pursuer was entitled to insist upon sale of the whole property and division of the price between the co-proprietors. The Lord Justice-Clerk (Lord Moncreiff) deduced from the judgment of Lord Rutherfurd in Brock that, where a division was not ‘reasonably practicable without sacrificing to an appreci­able extent the interests of some or all of the parties the only resort is a sale and division of the price’.⁶⁰ Lord Ormidale took a similar approach, observing that, where physical division of the property would adversely affect its value, the proper course was to authorise sale and division of the price.⁶¹ Lord Gifford emphasised that, while almost any property could be physically divided, regard should be had to questions of ‘expense of division and of deterioration or possible destruction of the value of the subject’;⁶² it was a consideration of these factors which would determine

58 1857, 19 D.700, 704.           ⁵⁹ 1875, 3 R.161.            ⁶⁰ 3 R.161, 164.

⁶¹ Ibid.

« 3 R.161, 165.

whether a property should be physically divided or sold and the price divided. The case as a whole is authority for the proposition that a co-proprietor can insist upon sale of the property and division of the price where a physical division would reduce its market value.

In Provost Magistrates and Councillors of Banff v. Ruthin Castle Ltd,⁶³ the essential question before the court was whether certain lands gifted to the provost, magistrates and councillors of the burghs of Banff and MacDuff in the form ‘jointly and to their assignees’ became part of the ‘common good’ of each of the burghs. If it did, a lease granted by the pursuers was void by statute. Hence the pursuers were concerned to argue that the effect of the words ‘jointly and to their assignees’ was to consti­tute them ‘joint’ and not ‘common’ proprietors. This contention was rejected by the Inner House. Lord MacKay refused to allow that there was a general class of ‘joint ownership’ characterised by the fact that ‘the common proprietors were tied to one another indissolubly until they mutually agreed on some specific mode of untying the knot’, thus excluding the remedy of division or sale. He admitted the existence only of some exceptional cases where this was true, most arising under the law of trust.⁶⁴ Lord Wark held that

A destination to A and B jointly and their heirs and assignees imports a right of proprietorship in each of the disponees to the extent of one-half pro indiviso, with full power of disposal thereof independently of each other... Any attempt to restrain that right of disposal is inept as being contrary to public policy. The right of division has been imported into Scots law from Roman law.⁶⁵

The Lord Justice-Clerk (Lord Cooper) noted that the institutional treatment of ‘common property’ as well as that of Pothier⁶⁶ could all be traced back to a paragraph in the Institutes of Justinian⁶⁷ which treated the obligation between persons who owned a thing in common without being in partnership as arising from quasi-contract and as enforceable by the actio communi dividundo. The absolute right of each co-owner to terminate the communion at will is derived both in Roman and Scots law from public policy. Joint property, on the other hand, where no such right to leave the communion is present, arises only in a limited number of cases in which the parties stand in some special relationship to each other, as in the case of a partnership or an unincorporated association.⁶⁸

The question of the appropriate remedy (division or sale) also arose in ⁶³ 1944 S.L.T. 373. ^M 1944 S.L.T. 373, 382.                                                ⁶⁵ 1944 S.L.T. 373, 385.

⁶⁶        This is a reference to Pothier’s essay Du quasi-contrat de communaute, printed as an appendix to his Traite du contrat de societe, in Oeuvres de Pothier (1819), vol. 6, 619.

⁶⁷        J.Inst.3.27.3.

⁶⁸        1944 S.L.T. 373, 388. It is not proposed here to go into the complex question of the relationship between common property and partnership. See J. Bennett Miller, The Law of Partnership in Scotland (Edinburgh, 1973), 65f., 376f., 387f.

Crathes Fishings Ltd\. Bailey’s Executors.^[351] Here the dispute concerned salmon fishings. The executors of one of two pro indiviso proprietors had sold his share to a company, and the share of the other had passed to his executors. The company sought a declarator of its right to insist on a sale of the salmon fishings and a division of the price. It averred that the property was incapable of division, but in any event insisted that it had an absolute right to a sale. The defenders argued that, since the salmon fishings were capable of division, this was the appropriate remedy. They further argued that, since the company had acquired its share in order to sell fishing rights on a commercial basis and had not acted in good faith, it was not entitled to a sale.

The Lord Ordinary (Lord Clyde) analysed Lord Rutherfurd’s opinion in Brock and concluded that the references to equity in that case did not support the defender’s view that equitable objections might be raised to the whole action of division or sale. All that could be extracted from the judgment was that equitable considerations might determine whether the appropriate remedy was division or sale. His Lordship dismissed as irrelevant the defender’s allegation of mala fides on the part of the pursuers. On this point he had been referred to certain Digest texts and two textbooks of Roman law. What he found most in point was the statement in Buckland’s Textbook of Roman Law to the effect that each co-owner had an absolute right to division of the property and that agreements not to divide were void.^[352] He then added an important qualification with respect to the utility of the Roman texts for the development of Scots law: ‘There was apparently some difference between the Roman actio [that is, communi dividundo] and the Scottish action as it has now developed and it may be that the Roman texts require to be treated with some reservation.’^[353]

When the case went to appeal,⁷² the Inner House upheld the Lord Ordinary’s judgment and also contributed some observations on the help to be derived from Roman law for the settlement of the rules to be applied in Scotland. The Lord President (Lord Hope) stated the general rule in Scotland to be that a co-owner had an absolute right to insist upon division or sale subject only to the possibility that he might have deprived himself of that right by contract or personal bar. His Lordship noted: ‘There are traces in Roman law of an acceptance that an agreement not to demand the subjects for a certain period was valid, although an agree­ment not ever to do so was not (D. 10.3.14.2 and 3).’⁷³ Lord Allanbridge, with reference to the defenders’ reliance upon the bona fide nature of the Roman actio communi dividundo, agreed with the Lord Ordinary’s comment that the Roman texts should be treated with caution. While under Roman law there was no doubt that a co-owner had a right to division, there was no clear Roman authority for the view that bad faith (mala tides) deprived him of that right. His Lordship pointed out the possible difference between classical and Justinianic law, the latter but probably not the former treating the action as based on good faith.^[354] Lord Mayfield accepted that the actio communi dividundo was a bonae fidei iudicium, but held that this did not mean that in Scots law equitable considerations might bar a co-owner from recourse to his basic remedy of division or sale.⁷⁵

It is significant that both the Outer and the Inner House gave serious consideration to the question whether rules stated in the Corpus luris Civilis should be treated as also being rules of Scots law. The approach of the court may be put in this way. Even though there is general agreement that a branch of the law of Scotland has been derived from Roman law, that branch in this case being the rules governing common ownership of land, it is not the case that each Roman rule relating to that topic will necessarily be deemed to be part of the law of Scotland. Yet, at the same time, the court will consider on its merits whether a particular Roman rule should be adopted. There are suggestions in Crathes that a rule may not be accepted into Scots law where its status in Roman law is uncertain or where it does not accord with the way Scots law has already developed.

Subsidiary issues which have arisen before the Scots courts have con­cerned the possibility of limitations upon the ‘absolute’ right to sell or divide, the type of sale which the court should permit, and the availability of remedies other than the action for division and sale between co-owners. One of the issues before the court in Grant v. Heriots Trust¹⁶ was the validity of a clause contained in a series of feu charters granted around the year 1760 to a number of persons constituting them owners in common with respect to certain land. The clause provided that ‘it shall not be in the power of the said... (disponee) or his foresaids, to pursue for a division of or build up the said common property, it being agreed to by all the parties concerned that the same shall remain an open area in all time coming’. Although this clause in so far as it purported to prevent a co-owner from seeking a division of the property was held by all the members of the Inner House to be unenforceable at the time the case came before the court, they did not analyse its effect in precisely the same way. The Lord President (Lord Dunedin), after observing it to be ‘familiar law’ that no co-owner might alter the legal or physical state of the property without the consent

^{New Roman">75} 1 991 S.L.T. 747, 754.

⁷⁶ 1906, 8F.647.

of all the other co-owners, held that the clause purporting to prevent a co-owner from seeking a division of the property was a nullity. ‘I have no hesitation in saying that to give a thing in common property and at the same time to say that you are not to pursue a division is an impossibility according to the law of Scotland.’^[355] Lord M’Laren did not go as far as this. He considered that the obligation not to sue for a division ‘might possibly be binding on the original grantee and his heirs, but certainly would not be enforced against a singular successor, because it is an obligation of the same class as the condition non alienandi sine consensu superiorum (may not be alienated without the consent of the superior), which by Act of Parliament is declared to be of no effect’.^[356] It is of interest that his Lordship referred to an Act of Parliament in this context rather than to the Roman law which contained explicit rules on the effect of an agreement between co-owners not to divide the property. Lord Kinnear simply said ‘there was attached to the right of property a condition against division which would probably have been ineffectual’.^[357]

In Morrison v. Kirk™ the question also arose whether co-proprietors might be barred from resort to an action for division or sale of the property. Here all the co-proprietors had granted a bond over the prop­erty, and the bondholders had refused to allocate the bond in the event of a division of the property. Although it was found possible to divide the property into three more or less equal parts, where one co-owner brought an action for division, the others objected on two grounds: (1) that the implied understanding, when the co-owners first obtained the bond, was that no division should be sought until at least the time when the bond fell due in 1912, and (2) that the division would be prejudicial to the interests of the bondholders. Both these arguments were rejected by the Inner House. Lord Salvesen (with whom the other two judges concurred) observed ‘Unless a pro indiviso proprietor has barred himself by contract from resorting to an action of division or sale, he has an absolute right at common law to insist in such an action. If it should turn out that division is impracticable, or would operate unfairly, then his remedy is to have the properties sold and the price divided.’⁸¹ He also found both that there was ‘no relevant averment of any agreement by the pursuer that she should not resort to her common law rights as a pro indiviso proprietor’,⁸² and that the interests of the bondholders were in no way threatened by the proposed division.

Where the remedy sought was the sale rather than the physical division of the property, a further question which the courts have had to consider has been the kind of sale to be authorised, in particular, whether it was always to be a ‘public roup’. In Campbell v. Murray^[358] the pursuers, being the pro indiviso proprietors as to two-thirds of a motel, sought the authorisation of the court for its sale by private treaty under circum­stances which showed both that the motel could not be physically divided without great loss of value and that sale by public roup would be less advantageous than sale by private treaty. The Lord Ordinary refused authorisation on the ground that the invariable custom in such cases had been sale by ‘public roup’. His judgment was overturned by the Inner House. The Lord President (Lord Emslie) referred to the expression ‘public sale’ found in the judgment of Lord Rutherfurd in Brock, upon which the Lord Ordinary had relied, and noted that this was not the same as ‘sale by roup’. Lord Rutherfurd had not been ‘addressing his mind to the forms of sale which might satisfy the description of public sale under the authority of the Court’.^[359] The Lord President found that in 1972 sale by public roup was not necessarily the best way of testing the market and obtaining a fair price. Hence in this case a sale by private treaty should be allowed.

⁸⁰ 1912 S.C. 44.

The matter of the kind of sale to be authorised was more fully con­sidered by the Outer House in Scrimgeour v. Scrimgeour ^[360] A divorced husband and wife were jointly pro indiviso proprietors of the matrimonial home solely occupied by the wife. The latter brought an action for division and sale seeking to purchase her husband’s share at a price to be fixed by a third party appointed by the court. The Lord Ordinary (Lord McCluskey) in granting this request traced the development of the law of the matter in Scotland. He noted that prior to Campbell v. Murray the practice had been to offer the property for sale at a public roup; since that decision it had been possible to sell by private negotiation. Such pro­cedure did not, however, exhaust the possibilities open to the court. His Lordship accepted the pursuer’s contention that the court might order a sale only as between the pro indiviso proprietors such that one acquired the whole property with a fair compensation going to the other. In this connexion he relied upon passages from the Institutes of Justinian⁸⁶ and the Codex Justinianus⁸⁷ which had been cited to the court by counsel. These passages authorised the judge in the actio communi dividundo to assign the whole of the property to one of the co-owners with compensat­ing payments to the other(s), either where the property could not readily be divided or where one of several co-owners bid the highest price for the shares of the others. The institutional writers themselves are interpreted as recognising the survival of a closed form of sale antedating resort to a public roup under which the co-owners were the only participants. Finally the Lord Ordinary adverted to, and apparently approved, a submission on behalf of the pursuer

that the Scots law on the matter is in fact not just derived from the Roman law but is taken in its entirety from the Roman law. The question of the remedy... is part of the substantive law or right itself. The practice of the court in Scotland has simply been an application of the principles of Roman law, although the adjecti­val form has been necessarily Scottish.⁸⁸

Although it is doubtful whether this proposition would be acceptable to all judges, Lord McCluskey’s judgment does demonstrate the extent to which texts from the Corpus Juris Civilis can still be cited and accepted as direct authority for the position in Scots law.

Some of the texts in the Digest suggest that where a disagreement arose between co-owners with respect to the property or damage to it, the appropriate legal recourse was the actio communi dividundo. Decisions of the Scottish courts without directly referring to Roman law also take the same approach. In Price v. Watson,⁶⁹ one of two pro indiviso proprietors had taken exclusive possession while the other was absent abroad. The latter on his return brought an action of ejectment to secure the removal of the defender from that part of the property of which he himself claimed occupation. The Inner House found for the defender on the ground that the pursuer’s proper remedy was the action for division and sale. Lord President Cooper observed that neither pro indiviso proprietor without the consent of the other had a right to the exclusive possession of any part of the property, and that at first sight the only remedy afforded by Scots law in a situation such as that before the court was the action of division and sale. Hence he did not wish to exclude the possibility that in certain circumstances an action of ejectment might lie at the suit of one pro indiviso proprietor against another.⁹⁰ Lord Keith held that the dispute concerned the management of the property. Where co-owners could not agree, Scots law provided only two remedies: either the appointment by the court of a judicial factor to manage the property on behalf of all the co-owners, or an action for division and sale.⁹¹

A similar, though not identical, issue arose in Denholm's Trustees v. Denholm.⁹² A brother held a two-thirds pro indiviso interest in certain farms, and his two sisters each held a pro indiviso interest as to one-sixth. The brother, without the agreement of his sisters or the trustees of the estate, was in sole occupation of the farms. The sisters and the trustees ⁸⁸ 1 9 88 S.L.T. 590, 593.                             ⁸⁹ 1951 S.L.T. 266.                  ⁹⁰ 1951 S.L.T. 266, 268.

⁹¹       1951 S.L.T. 266, 269.

⁹²        1 984 S.L.T. 319.

raised an action for recompense, claiming rent in respect of their share in the farms. The Lord Ordinary (Lord Allanbridge) in rejecting the action took the same approach as that adopted by the court in Price v. Watson. Referring particularly to the judgment of Lord Keith in that case, he held that the dispute concerned the management of the property, for which the appropriate remedy was either the appointment of a judicial factor or an action for division and sale.