Scottish Court of Session Decisions

This was a petition for the appointment of a judicial factor over the fee of three sums of money belonging to a party's wife and child, but which had been lent to him on the security of certain heritable property belonging to him. It was now intended to repay a portion of the money, and the object of asking the appointment was to reinvest it under the same destination as at present. The petition was refused by Lord Benholme, and the petitioners having reclaimed, they were ordered on 24th November 1865 to give in a minute stating the grounds on which they support their application.

A minute was accordingly given in, in which it was argued—The destination in each of the said three bonds and dispositions in security is to the said Mrs Jane Dobson or Montignani in liferent, for her liferent use allenarly, and exclusive of the jus mariti and right of administration of the petitioner, the said William Robert Montignani, and of any future husband she may

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marry, and to Maria Louisa Montignani, only child, and to such other lawful child or children as may thereafter be born of the said Mrs Jane Dobson or Montignani, in such proportions as she shall appoint, and failing such appointment, equally amongst them, and their heirs and assignees, in fee. In virtue, therefore, of the said three bonds and dispositions in security, the petitioner Mrs Montignani, for her liferent use allenarly (expressly exclusive of the jus mariti and right of administration of the said William Robert Montignani, or of any future husband she may marry), and the said Maria Louisa Montignani, and such other lawful child or children as may hereafter be born of the said Mrs Jane Dobson or Montignani, in fee, stand duly vest and seised in security of the foresaid sums in the subjects above-mentioned. Mr Montignani has sold two of the security subjects, and is now desirous of paying off the burdens. These circumstances are fully sufficient to warrant the appointment of a judicial factor. Without such an appointment, the petitioner Mr Montignani cannot obtain a valid and sufficient discharge of the said sums and securities, and cannot therefore clear the records of the same, or grant a clear title to the purchasers. Although Mr Montignani is proprietor of the subjects over which the securities extend, Mrs Montignani can effectually discharge these bonds and dispositions in security and sums of money, so far as her liferent allenarly therein is concerned, because she holds the same exclusive of the jus mariti and power of administration of her husband. But Maria Louisa Montignani, their only child, is a pupil. Her natural guardian and administrator-in-law is the petitioner, Mr Montignani. His interests as debtor in the bonds are adverse to those of his said daughter, who has the rights of a creditor therein; and he cannot therefore effectually concur with his said pupil child in discharging the bonds and dispositions in security and himself of the debt thereby constituted. But further, the said pupil has not the sole right to the whole fee of the said bonds and dispositions in security and sums, but she has only right thereto along with such lawful children as may be born of Mrs Montignani by her present or by any future husband, and that, too, only in such proportions as Mrs Montignani may appoint; and failing such appointment, the destination in the bonds is equally among them and their heirs and assignees. There is therefore at present no one who can attend to the interest in the said bonds and dispositions in security of the said pupil child, and of any other child who may be born of Mrs Montignani, or who can validly and effectually discharge the said bonds and dispositions in security—uplift the sums for which the same were granted—and see to their reinvestment in such a manner as—while it gives the liferentrix the full enjoyment of the liferent thereof, shall completely secure the rights of the children in the fee. All this can be fully and eifectually accomplished by the appointment of a judicial factor over the fiars' right and interest in the foresaid bonds and dispositions in security and sums of money. There is no other mode in which that can be accomplished. The purchasers will not carry through the purchase unless the records are cleared of the foresaid bonds and dispositions in security by virtue of discharges granted by Mrs Montignani as liferentrix, and by a judicial factor appointed over the fiars' interest by the Court. They will be quite satisfied with such a discharge. Both Mr and Mrs Montignani are anxious for such an appointment. Mr Montignani is anxious for it, because it will enable him to complete his contract of sale—non-implement of which may expose him to a claim of damages—and because it will enable him to get quit of the two houses, which he does not wish to hold any longer—to obtain payment of the prices of the houses—and to pay off two of the bonds. Mrs Montignani is anxious for it, because she naturally wishes that the rights of her present child, and of any future children which she may have, in the fee, may be effectually protected by the intervention of a judicial factor, while she enjoys as liferentrix the full annual proceeds arising from a proper investment of the money. When this minute was ordered the petitioners were asked whether the subjects could not be freed and disburdened by giving intimation and premonition under the provisions in the bonds to the creditors to appear and receive payment of the sums due, and thereupon to grant sufficient discharges thereof, by consignation in bank of the sums due in the event of the creditors failing to appear, and receive and grant a discharge for the same, and by thereafter, raising a summons of declarator of redemption of the subjects from the said bonds and dispositions in security, taking decree therein, and recording the decree in the register of sasines. This procedure would not in the present case effect the desired end. In the first place, it would not free the subjects of the said securities, because it is essential to the validity of such procedure that due premonition and requisition shall be made to the creditors. But here no such due intimation and premonition can be given to the fiars, because Maria Louisa Montignani is not the sole fiar, and all the other children who may be born of her mother have a right to participate therein as fiars, and because she is a pupil, and the debtor making the premonition is her father and administrator-in-law. To say the least, the validity of a discharge obtained by premonition, consignation, and decree of declarator of redemption in such circumstances would be very doubtful. It would expose the purchaser to serious questions as to its validity, and also to troublesome objections in the event of a re-sale; and if so, he is not bound to undertake such a risk. But further, it would not effect one of the principal objects which the appointment of a judicial factor would secure. The money would remain in bank at bank interest, and would not be invested, so that Mrs Montignani might not obtain the same return from it as if it were invested on heritable security, and thus would be deprived of the full enjoyment of her right of liferent. Further, if the money were so consigned, the appointment of a judicial factor would still be necessary for the protection of the fiars' interest in the consigned fund. As the money would be consigned by Mr Montignani, and as his jus mariti and power of administration is excluded, he could not act as administrator-in-law for his pupil child, Maria Louisa Montignani, even were she the sole fiar. But she is not the sole fiar, and her father has no right to interfere as regards the rights of children who may hereafter be born of Mrs Montignani by her marriage with him, or by any subsequent marriage which she may enter into, in the event that he should predecease her.

The petitioners referred to the cases of Gowans, 9th March 1849 ( 11 D. 1028); Prentice, 9th March 1849 ( 11 D. 1029); Johnston, 11th July 1822 ( 1 S. 596); Mann, 19th July 1851 ( 14 D. 12); Lamb, 11th March 1857 ( 19 D. 700).

The Court to-day granted the first alternative of the prayer of the petition, and appointed a judicial factor over the fee of the foresaid sums of money contained in the bonds and dispositions in security above-mentioned, and over the fiars' right and interest in and to the said bonds and dispositions in security, and in and to the foresaid subjects themselves, in so far as conveyed in security of the said sums for the interest of the said Maria Louisa Montignani, and of any other lawful children who may be born of the petitioner Mrs Jane Dobson or Montignani, and in order that the said sums may be invested under the same destination as they are at present.