Scottish Court of Session Decisions

The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), enacts—Section 9—“A personal right to every estate in land descendible to heirs shall, without service or other procedure, vest or be held to have vested in the heir entitled to succeed thereto by his survivance of the person to whom he is entitled to succeed, … and such personal right shall, subject to the provisions of this Act, be of the like nature, and be attended with the like consequences, and be transmissible in the same manner, as a personal right to land under an unfeudalised conveyance according to the existing law and practice.”

Section 47—“Subject to the limitation hereinbefore provided as to the liability of an heir for the debts of his ancestor, an heritable security for money duly constituted upon an estate in land shall, together with any personal obligation to pay principal, interest, and penalty, contained in the deed or instrument whereby the security is constituted, transmit against any person taking such estate by succession, … and shall be a burden upon his title in the same manner as it was upon that of his ancestor or author, without the necessity of a bond of corroboration or other deed or procedure; and the personal obligation may be enforced against such person by summary diligence or otherwise, in the same manner as against the original debtor.… .”

On 22nd May 1908, T. F. Fenton Livingstone, midshipman, H.M.S. “Bedford,” a minor, and J. J. M'Murdo, solicitor, Airdrie, his curator bonis, brought a note of suspension against William Gibson, W.S., Edinburgh, and others, as trustees of (1) the late Hew Crichton, W.S., Edinburgh, and (2) the late Miss Margaret Crichton, 13 Nelson Street, Edinburgh, craving suspension of a charge at the respondents' instance to pay to them as trustees foresaid two several sums of £1200 with interest. The complainer was the eldest son of the late G. F. Fenton Livingstone of Easter Moffat, near Airdrie, who died intestate on 16th August 1907, and at whose death there were three bonds over the said property, the third of which, to the extent of £2400, was held by the respondents. The complainer had not made up any title to the said estate, which was held in liferent by Mrs Fenton Livingstone, the mother of the said G. F. Fenton Livingstone, and was burdened with debt to the extent of £18,000, ranking prior to the respondents' bond. The respondents having charged the complainer to pay off the said sum of £2400, the complainer brought the present suspension.

The complainer pleaded, inter alia—“(3) The complainer, the said Thomas Frederick Fenton Livingstone, not having taken up said estate by succession, any personal obligation prestable against his father cannot be enforced against him by said charges, and they ought accordingly to be suspended.”

The respondents pleaded, inter alia—“(2) The complainer, Thomas F. F. Livingstone, having succeeded to the security subjects, and the respondents' securities having transmitted against him, under and in terms of the Conveyancing (Scotland) Act 1874, the complainers are liable to the diligence complained of, and suspension of said charges should be refused.”

On 12th June 1908 the Lord Ordinary ( Guthrie) refused the note.

Opinion.—“The complainer's late father granted a bond for £3400 over his estate of Easter Moffat. To the extent of £2400 that bond is held by the respondents. The complainer is the eldest son and heir of his late father. He has not made up any title to his father's estate. He has been charged by the respondents to pay the £2400 in the bond granted by his late father.

The question of the complainer's liability turns on the construction of section 47 of the Conveyancing Act of 1874. If he has taken his father's estate by succession in the sense of that section then he is liable; but if, before the section can apply, an heir must make up a title to the estate, then he is not liable, for he has made up no title.

“Contrary to my first impression, I think the section applies. The expression ‘taking such estate by succession’ is capable of being read either actively as equivalent to ‘taking up the succession by making up a title thereto,’ or passively as equivalent to ‘becoming entitled to the succession.’ I prefer the latter reading. It seems to me that the scheme of the Act is, under section 9, to confer on an heir the benefit of a transmissible personal title to his ancestor's estate without making up a title, and, under section 47, to impose on the heir the corresponding burden of liability for the debts of his ancestor even although he has not made up a title. The reference in Schedule K to a person in the position of the complainer as ‘the present proprietor’ does not imply that a title has been made up. He has become proprietor by virtue of section 9 of the Act. See M'Adam, 6 R. 1256.”

Page: 897↓

The complainer reclaimed, and argued—The complainer had not “taken the estate by succession” in the sense of section 47 of the Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94). Taking the estate meant doing something active or overt, e.g., intromitting with the rents or making up a title—in short, doing something which would show an intention to accept the succession. Mere survivance of the ancestor was not taking the succession, for otherwise an heir would lose the benefit of the six months allowed him for deliberation whether to enter or not. It would be contrary both to principle and to statute that liability to diligence should result from mere survivance. The creditor was not without his remedy, for he could go against the estate. The complainer was not a “proprietor” in the sense of Schedule K of the Act, for proprietor there meant feudal proprietor, and the complainer had not made up any title to the estate. That being so, he had not “taken the estate by succession,” and the personal obligation in the bond had not transmitted against him— Lamb v. Field, October 30, 1889, 27 S.L.R. 242. The respondents' argument founded on section 47 of the Act of 1874 was inconsistent with the terms of section 9 and section 13, for section 9 conferred only a personal right to the estate, not the estate itself, and under section 13 the right of challenging the heir's succession ran from the date of “infeftment,” not from that of “survivance.” In any event, the complainer was not liable except in so far as lucratus— Welch's Executors v. Edinburgh Life Assurance Co., May 29, 1896, 23 R. 772, 33 S.L.R. 585. The complainer was not bound, as the respondents contended, to renounce the succession. The question of renunciation was not hujus loci, for renunciation was an answer to a process of adjudication—an entirely different process from the present. The complainer's answer to this process was twofold, either he had not accepted the succession, or, if he had, he was not lucratus thereby, and suspension should therefore be granted.

Argued for respondents—The Lord Ordinary was right. The complainer was the proprietor of this estate, and was therefore liable for the debts secured upon it. The object of the Act of 1874 was to prevent an estate being jacens between the death of the last proprietor and the completion of title by his heir. It therefore gave the heir a right to the land immediately on the ancestor's death. He became owner of a personal right to land, and was in the same position as if he held a conveyance to the estate— M'Adam v. M'Adam, July 15, 1879, 6 R. 1256, per Lord President Inglis at p. 1258, 16 S.L.R. 761. If an heir did not wish to accept the succession he was bound to renounce it at once. The complainer had recorded no minute of renunciation, and must be assumed therefore to have taken the succession. The word proprietor as used in Schedule K included an heir who had only a personal right, for he was the owner of an “estate in land,” and “estate in land” included “any interest in land” (sec. 3). The case of Lamb relied on by the reclaimers was an Outer House decision and not binding; and, moreover, the case of M'Adam ( cit. sup.) did not appear to have been cited there. As to the practice under the old law, where an heir might enter with the benefit of inventory, reference was made to Ersk. Inst. iii, 8, 68; Bell's Com. i, 706; and Parker on Adjudication, pp. 72–74.

At advising—