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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paton v Renny. [1835] CA 13_509 (21 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0509.html Cite as: [1835] CA 13_509 |
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Page: 509↓
Subject_Ranking and Sale,—Bankruptey—Adjudication—Personal Objection—1661. c. 24.—
1. Circumstances in which, held that a party, founding on a contract of sale of lands and an adjudication in implement, was not entitled to have the lands struck out of a ranking and sale. 2. Observed, that an adjudication of lands, in implement of a contract of sale thereof, has no greater force than a voluntary disposition of the lands, in precise fulfilment of the contract, would have had, and, therefore, if such disposition would have been struck at by the latter clause of 1661, c. 24, the adjudication would equally be so.
In 1813, Walter Stirling Glas, residing at Sauchiehouse, Stirling, entered into a contract with George Pentland, coachmaker in Perth, in the form of a minute, by which, on the narrative that he was entitled to succeed to the lands of Longkerse, &c., on the death of his father, Dr Glas, he “bound and obliged himself, his heirs, &c., within six months after he should succeed to the said lands and others, to execute and deliver, upon his own proper charges and expenses, a valid and sufficient irredeemable disposition to and in favour of the said George Pentland and his heirs and assignees, of all and whole the lands of Longkerse,” &c., “as above described, together with all right, title, &c., which the said Walter Stirling Glas, his authors, had, have, or anyways might have, claim, or pretend thereto.” The minute farther bound Glas to deliver a sufficient progress of titles to the lands, and empowered Pentland, in his name, to procure him duly and lawfully served heir to his father, and generally to adopt the measures necessary for completing a feudal title in the person of Glas.” Pentland bound himself, “upon receiving delivery of the disposition above mentioned, to make payment to the said Walter Stirling Glas and his foresaids of the sum of £4200 sterling, as the stipulated price of the said lands.” Glas at the same time granted bond to Pentland, acknowledging that he was indebted to Pentland in the sum of £2500, The minute, or contract of sale, purported that this sum,
Dr Glas lived till the end of the year 1822. In 1819, Pentland gave a charge to Glas upon the bond for £2500. Glas presented a bill of suspension, pleading that it was a violation of the minute of sale of 1813, to call up the bond, as the contents of it were to be imputed in the price of the land of Longkerse, and were not to be called up during the lifetime of Dr Glas. Pentland lodged answers, stating that the contract of sale had been entered into, upon the fundamental condition that Glas had an indefeasible right of succession to Longkerse; that this turned out not to be the fact, and that these lands had subsequently been burdened by Dr Glas, without the knowledge of Glas, and beyond his control. Pentland added, “Now, it may be very true that these acts are beyond the petitioner's control, but then, they show that the contract or minute of sale is at an end, because it has become impossible for the petitioner to fulfil it.” In another part of the same pleading, Pentland repeated the statement, that “the contract was at an end.”
Glas obtained decree of cessio, and executed a disposition omnium bonorum, under which Pentland was the trustee for the creditors, in whose favour the disposition was granted. On the death of Dr Glas, it appeared that a trust-conveyance of his estate had been executed by him, whereupon Pentland, as a creditor of Glas, and trustee for the other creditors under the disposition omnium bonorum, raised a reduction of the trust-deed. In this reduction he was successful. Pentland afterwards adopted various judicial proceedings for the purpose of obtaining a conveyance of the lands of Longkerse to himself as trustee for the creditors, and among other steps, he raised an adjudication of these lands in implement of the disposition omnium bonorum.
Dr Glas left large debts, which were said to exceed the whole amount of his estate, but his creditors did no diligence within three years of his death. After considerable intermediate procedure, these creditors, along with those of his son, Walter Stirling Glas, raised a ranking and sale of the lands of Longkerse and others, now belonging to Walter Stirling Glas. William Renny, W.S., was chosen common agent. The estates of Pentland had, in the mean time, been conveyed to a trustee, and were now vested in Thomas Paton, accountant in Edinburgh. Paton led an adjudication of the lands of Longkerse in implement of the contract of sale of 1813, and obtained a charter of adjudication, on which he was infeft. He presented a petition for having these lands struck out of the ranking and sale, as being the property of Pentland and not of Glas; and, before closing the record which was made up under the petition, Renny repeated a summons of reduction of the charter and infeftment of Paton. Pentland made appearance in the process, and concurred with his trustee Paton.
The case was affected by various specialties, but it was pleaded by Renny—
1st, That the adjudication in implement of the contract of sale could have no greater legal force than a disposition, executed in precise implement of that contract, could have had. But as the contract bound Glas to execute a disposition within six months after his father's death, such deed would have been null, in competition with his father's creditors, under the latter branch of 1661, c. 24. The adjudication, therefore, which merely came in place of such a disposition, was equally invalid.
2d, Pentland had repudiated the contract of sale, and abandoned it, not only by insisting for payment of the £2500 bond, during the lifetime of Dr Glas, and repeatedly declaring judicially that the contract of sale was at an end, but also by his conduct as trustee under the disposition omnium bonorum, claiming the lands of Longkerse for behoof of the general creditors, which was wholly incompatible with his maintaining any separate and prior right of property in these lands as belonging to himself.
Paton answered—
1st, The contract of sale was prior to the death of Dr Glas. The express words of the act 1661, c. 24, limited its effect to deeds executed after the ancestor's death, and within a year thereof. Thus, it could not reach the contract of sale. As to the adjudication in implement, it was not led within the year after the ancestor's death, and it should receive as full effect as if Glas had executed a disposition in implement of the contract, but had, ex proposito, delayed to do so until the twelvemonth had first elapsed, so as to make it unchallengeable. If he had so delayed, the disposition could not have been vitiated by mere reference to the contract, which bound him to convey in six months after his father's death; and the adjudication in implement was not more open to challenge, than such disposition would have been.
2d, It was only if Glas was unable to execute a conveyance in his favour, that Pentland had said he thought the contract of sale of 1813 was at an end. His endeavouring to make up a title to Longkerse, as trustee under the disposition omnium bonorum, did not imply any surrender of his own preferable right, as the preferences of all creditors were necessarily saved, under the trust-conveyance, just as much as in a conveyance to the trustee under a sequestration.
The Lord Ordinary reported the case.
Independently of this objection to the claim made by the petitioner, I think there has been a series of actings by Pentland, such as to evince that the contract of sale of 1813 was repudiated by him, and was held for a long term of years, prior to the present demand, to be null and void. I am for refusing the petition, for striking these subjects out of the ranking and sale.
The Court “refused the desire of the petition to strike the lands of Longkerse, &c. out of the sale, and reduced, decerned, and declared, in terms of the conclusions of the summons of reduction; and found the petitioner and defender liable in the respondent and pursuer's expenses.”
Solicitors: R. Roy, W.S.—W. Renny, W.S.—Agents.
