Scottish Court of Session Decisions

William Ewing, residing in South Queensferry, was proprietor of several heritable subjects in Edinburgh and Glasgow. Over these subjects he granted two heritable bonds, with powers of sale. Both bonds became vested in the late John Gordon of Gower Street, London, who was infeft, and on his death they were held by his trustees, and their commissioner, James Stuart, S.S.C. After March, 1836, Ewing failed to pay interest on the bonds, and Gordon's trustees raised a summons of poinding of the ground, under which they sold and realized proceeds amounting to £480, and also proceeded to expose the subjects to sale, in virtue of the powers of sale contained in the bonds. Whilst they were in the course of this procedure, Ewing was incarcerated, and having obtained the benefit of the process of cessio, he executed a disposition omnium bonorum in favour of Andrew Bell of Blainslie, as trustee for his creditors. Bell subsequently presented a bill of suspension and interdict, on caution, craving an interdict of the sale of the heritable subjects, on several grounds, and inter alia (1.) Because the title-deeds of the whole properties were held by the law-agent of Ewing, under a hypothec for his account, which was stated to amount to £3000; and Bell, for the personal creditors, alleged that, if the subjects were exposed to sale without the purchasers having access to the title-deeds, no adequate price could be realized, so that no surplus could arise to the personal creditors: and (2.) Because Ewing's law-agent had obtained a decree of adjudication, and raised a summons of ranking and sale, which superseded the right of heritable creditors under their powers of sale in their bonds.

Bell obtained interim interdict, and an order for answers. He served this interdict on the heritable creditors, at a diet fixed for the roup of part of the subjects, and while the roup was going on.

Gordon's trustees, besides alleging that there was not the slightest chance of a reversion to the personal creditors of Ewing, and that the present bill of suspension was presented in mala fide, in the name of Bell, but truly for behoof of Ewing's law-agent, and in order to enable that agent to turn his right of hypothec to account, answered (1.) That they (chargers) possessed extracts of the title-deeds, and their own heritable bond and infeftment, which, in itself, was a marketable title; that they would be able to realize a full price for the subjects, and had actually been offered a full price for a large part of them at the roup, at which the interdict had been served on them; that the law-agent's account had been incurred subsequently to the date of their bonds and in the knowledge of them, so that even all plea of hardship as to him was excluded; but that, independently of all this, they were entitled to sell the subjects, and realize their debts, under the powers of sale in their heritable bonds, and they would not have advanced their money to Ewing if the powers of sale had been clogged with any such condition as that they must first redeem the hypothecated title-deeds before selling the subjects. Ewing could not have maintained that plea, and the trustee under his cessio could not plead higher than Ewing could have done himself. (2.) It was expressly decided and fixed, that, even a depending process of ranking and sale could not prevent a heritable creditor from proceeding with the sale of the subjects falling under the power of sale in his bond. ¹

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¹ Simpson, Nov. 25, 1831 (ante, X. 66); Kerr, March 3, 1830 (ante, VIII. 629); Beveridge, Jan. 17, 1829 (ante, VII. 279).

The Lord Ordinary “refused the bill, and recalled the interdict; and found the complainer liable in expenses.” ^*

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* “ Note.—The allegations in the bill, as to the want of premonition to the debtor, the failure to advertise, and the omission to account for the sum realized by the poinding of the ground, are all so satisfactorily explained in the answers, that it is unnecessary to advert to them.

“With regard to the suspender's plea, that the subjects will not sell to advantage without the title-deeds, it is thought that the personal creditors of the debtor are not entitled to interrupt a sale by an heritable creditor having a special power of sale, on any such plea. It is true, that a property very often brings an inadequate price if the title-deeds are not exhibited. But the want of the titles here is attributable to the debtor, who, after granting the heritable bond with a clause of sale, hypothecated the titles by running up an account with a law-agent. After so acting, he could not stop a sale by the creditor for an indefinite period, till the result of a protracted inquiry and law-suit as to these titles. The fault is his own that they are not produced. And the personal creditors in this question have no broader right than the debtor would have had.

“Besides, it is not easy to see how this matter could ever be extricated by satisfying or acknowledging the claims of the law-agent, as these are of an amount which obviously neither heritable nor personal creditors will ever advance to get access to the title-deeds. This also appears to be unnecessary, from the statement in the answers, and from the offer actually made for the property at the last diet of sale, when the interdict was intimated.

“The plea attempted to be founded on the raising of the process of ranking and sale, is completely met by the case of Simpson, 25th November, 1831, and prior authorities, noticed in the answers.”

The suspender reclaimed. The Court did not call on counsel in support of the interlocutor.