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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Dowall and Others [1874] ScotLR 11_673 (11 July 1874) URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0673.html Cite as: [1874] ScotLR 11_673, [1874] SLR 11_673 |
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Page: 673↓
Held that certain articles of machinery which could not be removed from a building readily and without injury were heritable, while others, never so fixed, and not placed there to add to the value of the heritage, were personal and passed to the executors.
This was a Special Case, brought by Mr Charles Dowall, as factor loco tutoris to the son of the late Mr Alexander Anderson Miln, manufacturer at Pitalpin, Lochee, on the one part, and the widow and factor loco tutoris to the daughter of Mr Miln, on the other part.
Page: 674↓
The following are the facts of the case;—The late Alexander Anderson Miln, manufacturer, Pitalpin, Lochee, died upon the 15th of July 1873, intestate and without any marriage-settlement. He was survived by his widow, Mrs Eliza Paterson Dowall or Miln, and by two children—viz., Charles Dowall Miln and Eliza Dowall Miln, who were at the time of their father's death aged respectively eighteen months and three years. Mr Miln's estate consisted chiefly of the mill and works at Lochee, which belonged to him, and were in his own occupation at the time of his death, together with the machinery and stock in trade. The estate fell to his widow and children according to the rules of intestate succession, and in ascertaining the extent of the heritable succession difficulties arose as to what should, as in a question between heir and executor, be held to be heritable and what moveable. Appended to the Special Case laid before the Court there was an inventory of the whole machinery in the works of the late Mr Miln. Part of this inventory consisted of certain articles of machinery purchased by Mr Miln (who at the time of his death was extending his works) but not connected with the other machinery or used in any way. In these circumstances, the opinion and judgment of the Court was asked upon the following questions of law:—“(1) Whether any and which of the articles mentioned in the inventory hereto annexed fall to be held and treated as heritable property in the succession of the late Mr Miln? (2) Whether any and which of the articles mentioned in the inventory hereto annexed fall to be held and treated as moveable property in the succession of the late Mr Miln? (3) Whether, assuming it to be held that the machinery in use at Mr Miln's death, similar to that specified in Branch 11 of the inventory printed in the Appendix, is heritable, the machinery there described, and which had never been used or connected in any way with the driving gear, is heritable or moveable?”
Authorities— Macniven v. Pitcairn, March 6, 1823, F. C.; Fisher v. Dixon, 5 D. 575, 4 Bell's App. 285; Heineccius, Inst. 199; Lawton v. Salmond, 1 Black's T. 249; Fraser, 25 L. J., Ch. Cases 361, and Kay & Johnstone, 536; Walmisley v. Mill, 29 L. J., C. P. 97; Holland v. Hodgson, 7. L. R., Exch. Ch.; D'Eynecourt, 3 L. R., Eq. 382, Nov. 21, 1866; Trapps v. Harcourt, 2 C. and L. 153.
At advising—
Lord Justice-Clerk—My Lords, the questions raised in this case are of considerable importance. It has been very well and candidly presented to us, and the details and explanations given bring out the facts with perfect clearness. It was explained to us that the deceased, the proprietor of the mill and machinery in question, was a young man, who met his death by an accident, leaving a young family and dying intestate, so that his affairs have been left in a position different from what might have been expected under ordinary circumstances. The question whether the whole or part of the machinery is to go with the heritage to the heir, or is personal property, raises an important question in a category of law in which I cannot say the decisions have been either uniform or satisfactory. Some points have been clearly determined, but the questions put to us in this case in regard to the subjects enumerated in the appendix have never been the subject of direct decision. The result of the decisions in the matter I take to be as follows. The fundamental principle is simply that the accessory follows the principal; a subject personal in its own nature may become heritable if it is truly the accessory of real estate. In the earlier cases great favour was shown to the heir, and there was always a presumption in his favour. This has not been so of late years. Various subtle questions have been raised, and distinctions taken in applying the general principle to cases between landlord and tenant and heir and executor.
I take it to be settled that if the personal subject cannot be disjoined from a heritable subject without injury either to itself or to the heritable subject, it becomes heritable by accession. This principle is well settled by the case of Fisher v. Dixon, and others which followed upon it.
Again, the result may be the same when there is only a certain amount of fixture. (1) If the personal subject is essential or material to the use of the heritable. This point was also decided by the case of Fisher v. Dixon. (2) If there is a special adaptation in the construction of the personal subject to the use of the heritable subject which it would not have had if it had been placed elsewhere. The case of D'Eynecourt established this principle. (3) If there is an express declaration by the owner of his intention that the subject should be heritable. It is under this head that I think the English cases of mortgage which were cited to us must be placed. It has been held that a personal subject became real when it was the subject of direct mortgage along with real estate. I apprehend that these cases depend upon the principle that the owner has declared his intention. On the other hand, where the object of the annexation is not the benefit of the heritage, and where there is no intention of making the fixture an accessory of the heritage, the principles above laid down do not apply. Thus we have the whole category of trade fixtures. It has been said that the exceptions of trade fixtures from heritage in questions between landlord and tenant was established in favour of trade. I do not think this is the foundation of so important a class of decisions, but rather that the tenant cannot be presumed to have put in the fixtures for the benefit of the landlord's property.
In the present case the question is raised whether in the case of a manufactory where the building, so far from being the principal subject, is a mere accessory, and the most important thing is the machinery, which is not the fruits or for the benefit of the heritable subject, but only under the shelter of its roof, whether the subject, being moveable, becomes heritable by accessory. It certainly does not do so in a question between landlord and tenant. I cannot state the question better than in the words of Baron Parke in the case of Hellawell v. Eastwood ( 6 Exch. Rep 312). I read that passage, not so much as authority, but rather as the result of my own opinion, because I am aware that Mr Justice Blackburn in a later case has expressed a doubt—though I am unable to see upon what is founded,—whether Baron Parke was dealing with the subjects in question as things fixed to the floor. That was a case of landlord and tenant. But if the principle of decision was that the building was not the object of the attachment, and that the owner never intended to attach the machinery to the building, it carries us a long way. Take the case of a manufacturer
Page: 675↓
Applying these principles, I propose that we should hold numbers 1, 2, 3, 4, 9, the circular saws under 10, and the hydraulic press under 12, to be heritable. They fall under the first principle, being so attached that they cannot be removed easily, readily, and without injury.
The other objects are implements of trade which were never so fixed, and were not placed there for the purpose of adding to the value of the heritable subject. They were mere implements of trade, which remained personal, and therefore to be divided among the personal representatives.
Under the old law, by which the style of conveyance of heritable moveable property was different, I cannot doubt that if a man bequeathed the machinery in this mill by his testament it would have received effect, and I think the same principle applies though this gentleman has left no written declaration of his intention, and that this property, with the exception proposed by your Lordship, should be distributed in executry. They have been brought into the mill for the purposes of the trade—that is for a temporary purpose—and they can be detached without injury.
The other Judges concurred.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel on the Special Case, are of opinion and find that the articles under the following numbers in the inventory attached to this case, that is to say, Nos. 1, 2, 3, 4, and 9, and also the circular saws under No. 10, and the hydraulic packing cases under No. 12, are heritable, and that all the other articles in the said inventory are moveable, and that the same are to be held and treated as such respectively, and decern; find that the expenses of each party must be paid out of their share of the succession, and remit to the Auditor to tax the same and to report.”
Counsel for First Party— Watson and Kinnear. Agents— Webster & Will, S.S.C.
Counsel for Second Parties— Balfour. Agents— Maclachlan & Rodger, W.S.
