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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Earl of Dunmore v Dickson [1835] CA 13_1107b (11 July 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1107b.html
Cite as: [1835] CA 13_1107b

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SCOTTISH_Shaw_Court_of_Session

Page: 1107↓

Earl of Dunmore

v.

Dickson
No. 348.

Court of Session

1st Division

July 11 1835

Ld. Jeffrey, Lord President, Lord Balgray, Lord Mackenzie, Lord Gillies.

Earl of Dunmore,     Suspender.— Rutherfurd— Tait. Walter Dickson (Common Agent in the Ranking and Sale of Harris),     Charger.— Anderson.

Subject_Process—Ranking and Sale—Sasine.—

1. A process of sale and ranking was raised by a party standing infeft as a real creditor: after it had proceeded so far that the lands were sold, and decree of sale was pronounced, but not extracted, the purchaser presented a bill of suspension as of a threatened charge for the price, in respect that the sasine of the pursuer was erased in substantialibus; and a real creditor having then sisted himself as pursuer, the Court thereupon repelled the reasons of suspension. 2. Question as to the effect of the date of the year of the King's reign in a sasine, being written on an erasure.

In 1811, the late Alexander Hume of Harris disponed the estate of Harris to his son, Alexander Norman Macleod. The disposition was granted under the burden of an annuity of £300, in favour of Miss Lavinia Hume Macleod, sister of the disponee, which was declared to be a real burden. Infeftment followed on the disposition in 1812, and, on Miss Macleod's marriage with Ferrers, in 1828, she disponed her heritable right to the marriage trustees, and granted a precept of sasine to them, on which they were infeft. Her brother, Alexander Norman Macleod, was a consenter to the conveyance and infeftment in favour of the marriage trustees. A process of sale and ranking of the estate of Harris was raised in 1830 by the marriage trustees, in which Walter Dickson, W.S. was named common agent; and, after the usual procedure, warrant was obtained to sell by public roup, and the lands were sold on 5th March, 1834, for £60,200, to Lord Dunmore. It was stipulated by the articles of roup, in common form, that the purchaser should satisfy himself as to the validity of the titles, previous to the sale. Lord Dunmore found caution, in terms of the articles of roup, and, the sale being reported, decree of sale was pronounced on 9th July, 1834.

It appeared that Macleod was duly infeft in one portion of the estate of Harris, independently of the sasine in his favour in 1812.

Before the decree was extracted, Lord Dunmore objected, that the whole process, and decree of sale, were irregular and inept, in respect that, in Macleod's sasine of 1812, the word “ third” indicating the year of the King's reign, was written upon an erasure, and the sasine was therefore null, according to the recent decision in the ranking of Land. 1 And as the real right of Mrs Ferrers, together with that of the marriage trustees, who derived from her, was dependent on this sasine, it followed that they were mere personal creditors, if the sasine was a nullity; and, consequently, that they were not entitled to institute the process of sale and ranking.

The Lord Ordinary ordered Cases.

Before they were discussed, a petition was presented to the Court by Misses Margaret and Elizabeth Bell, stating the difficulty which had arisen, and, as undoubted real creditors, of the common debtor, craving authority “to sist themselves as pursuers of the depending process of ranking and sale, and to take up the same, and carry it on to its final issue, for the common behoof of the whole creditors, and to remit to the Lord Ordinary to proceed accordingly.”

The petition was taken to see, after which it was granted.

Pleaded by the Common Agent—

1. By the articles of roup, Lord Dunmore was bound to satisfy himself of the sufficiency of the title he was to obtain under the decree of sale; and it was too late now to take any objection. 2

2. The erasure in the sasine was not admitted to be fatal, and the case

_________________ Footnote _________________

1 Smith, Feb. 13, 1835, ante, 461.

2 Hay, July 10, 1783 (14183); Carruthers, May 26, 1825 (ante, IV. 34); Sorlie's Trustees, Feb. 14, 1832 (ante, X. 319).
of Land was now under appeal. 1 But, independently of this, the common debtor was infeft in one portion of the estate of Harris, upon titles which were distinct from the sasine 1812; and he was a consenter to the conveyance to the marriage trustees, and to the sasine thereon. Such sasine was as effectual to make a real right as if the precept had directly flowed from himself as granter, in place of being merely consenter. 2

3. But, even if the sasine 1812 was reducible, the objection was ill-founded; the process had been raised by a party who was, ex facie, a real creditor, and who was then recognised as such by all concerned. It was a process raised, optima fide, not only for behoof of that creditor, but for the behoof of all the creditors, who were thus, in substance, co-pursuers, the only proper defender being the bankrupt. After the process was brought into Court, a common agent was accordingly appointed, and all farther procedure was at his instance. And as due intimation had been made, and a sale effected, the purchaser, by paying or consigning the price, would be secure against all hazard, as the statutes 1681, c. 17, and 1695, c. 6, had limited the recourse of the bankrupt and his heirs or creditors, to take effect merely against the receivers of the price, and not against the purchaser. His protection was, therefore, complete, and it had been so found in cases much stronger than the present. 3 But separately, it was provided by Act of Sederunt, 23d November, 1711, § 4, “That if the pursuer of a process of sale and ranking shall, during the dependence, die, or forbear to insist, or if his title and interest shall happen to be satisfied and extinguished, the factor, if any be, or, otherwise, any other real creditor, may, upon special warrant from the Lords, take up the process where it left off, and carry it on to its final issue, for the common behoof of the whole creditors.” And as the Misses Bell, who were real creditors, had now been sisted as pursuers, this was enough to cure any defect otherwise existing, and to render the whole proceedings unchallengeable.

Pleaded by Lord Dunmore—

1. The articles of roup were never meant to bar a purchaser from stating a radical objection to the whole process of sale itself. And, even in regard to the mere progress of titles, * it had been repeatedly

_________________ Footnote _________________

1 Gaywood, June 19, 1828 (ante, VI. 991); Earl of Cassilis, June 2, 1831 (ante, IX. 663).

2 2 Cr. 2, 7

3 2 Bell, 278; Cooper, June 21, 1720 (14171); Dundas, Nov. 9, 1739; (Elchies voce Ranking and Sale, No. 5); Blackwood, Jan. 4, 1749 (11999); Middlemore, March 5, 1811 (F. C.); Stewart's Creditors, Feb. 29, 1812 (F.C.); E. of Wemyss, Feb. 25, 1824 (2 Shaw, App. Cases); 54 Geo. III. c. 137, § 10.

* Some minor objections had been pleaded, particularly that the letter E in the word “Eighty,” indicating the year of grace in another sasine, was written on an
decided, that a purchaser was not barred from objecting to a bad title. 1

2. The erasure in the sasine 1812 was fatal, and the sasine a nullity. The right of Mrs Ferrers thus resolved into a personal right, and the marriage trustees, being infeft only on a precept flowing from her, were mere personal creditors also. They, therefore, could not raise an action of sale.

3. The process of sale was altogether statutory, and unless carried through in terms of the regulating statutes, it was inept. By 1681, c. 17, a judicial sale was “authorized and empowered, upon a process at the instance of any creditor having a real right.” Laying aside the instance of an apparent-heir (which did not occur in this case), a process of sale could not be raised, except at the instance of a real creditor. He alone was the statutory pursuer. The Act of Sederunt, 1711, did not, and indeed could not, alter this enactment. It provided that if the pursuer died during the dependence, or failed to insist, or had his interest extinguished, “the factor, if any be, or otherwise, any other real creditor,” might be authorized to carry on the process where it left off. This enactment necessarily assumed that the statutory process had, in the first instance, been duly raised; and accordingly it was only any “other” real creditor, or the factor, who was to be empowered to carry it on. After the process had been duly raised in terms of the statute, this remedy would apply; but it could not have the effect of making a valid process, where there had been, in truth, no pursuer to raise process under the statute.

The sisting of the Misses Bell was therefore inept to cure the radical defect of there having been no competent pursuer to raise the process, or constitute a dependence. And this was the more apparent, as the process had been carried the length of a decree of sale before they were sisted. The existence of a common agent never could supply the want of an original pursuer, as the latter must first exist before a common agent can effectually be appointed; and his office does not come in lieu of a pursuer, otherwise there would have been no room for the provision in the Act of Sederunt for carrying on the process, under special warrant, where the original pursuer fails. 2

Lord President.—The Misses Bell are real creditors, and have been sisted as pursuers of this action. It appears to me, that this takes away the ground of the suspender's objections. It is at a late stage of the process that they have been sisted; but I think they are still in good time. I am for repelling the reasons of suspension. One of the purposes of allowing a new pursuer to come forward and

_________________ Footnote _________________

erasure. But the 3d plea was that to which the opinions of the Court bore special reference.

1 Waddel, June 19, 1828 (ante, VI. 999).

2 2 Erek. 12, 63.
sist himself, is to remove such an objection as has been taken here, and to cure any supervenient nullity in the title of the original pursuer.

Lord Balgray.—I am of the same opinion. The sale was brought optima fide. The common debtor stated no objections, and none of the co-creditors have objected. I do not think the purchaser can be permitted, at this late stage, to come forward and say, the common agent can give him no good title. The objections taken do not appear to be well founded; and, if they were, I should hold that, after decree is extracted, the rule of competent and omitted would bar any party from stating them against the purchaser, who might otherwise have had an interest or title to do so. In the process of mercantile sequestration, it may often happen that when the creditors come to be ranked on the estate, the debt of the concurring creditor may be cut down altogether, or below the statutory amount; but that can afford no ground for recalling the sequestration. And though the real right of the original pursuer of this process appears, after the process has depended for several years, to be defective, I do not think the process can be set aside ab initio, as apprehended by the suspender.

Lord Mackenzie.—I think the ground of objection is removed, in consequence of real creditors having been now sisted as pursuers. The decree may be extracted in their names. And I concur with Lord Balgray, that, after decree is so extracted, any party attempting to challenge the title acquired by the purchaser, would be barred by the exception of competent and omitted or proponed and repelled. It is necessary that there should be some distinction between a decree in a process of sale and ranking and other processes, so far as concerns the absence of the common debtor, the defender, and the effect of it. It may be true, that this is not a case where such an objection will ever be taken; but it might be in other similar cases, and on that account I have adverted to it.

Lord Gillies.—This case appears to me to be doubtful. The Misses Bell could certainly have brought the process as original pursuers. But there does seem to be a doubt, whether their sisting themselves now be equivalent to their having originally brought it. In regard to the analogy of the law of mercantile sequestration, it is regulated by a different act of Parliament; and it seems unsafe to argue from one process to another, where both are statutory, and are regulated by separate statutes.

The Court pronounced this interlocutor:—“Repel the reasons of suspension, and find the charge orderly proceeded in respect of the reasons stated by the charger; and also in respect that Misses Bell have been allowed to sist themselves as concurring pursuers in the sale and ranking, and find no expenses due.”

Solicitors: Taits and Young, W.S.— W. Dickson, W.S.—Agents.

 SS 13 SS 1107 1835

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