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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnston v. Pettigrew [1867] ScotLR 4_101 (14 June 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0101.html Cite as: [1867] ScotLR 4_101, [1867] SLR 4_101 |
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Page: 101↓
A party acquired two bonds and dispositions in security in corroboration of a disposition of lands to him. He took infeftment on the disposition, but the instrument of sasine made no reference to the bonds, and they were not recorded under the Act 8 and 9 Vict., c. 31. He afterwards made a disposition of the lands and of the bonds, and that deed was registered under the Titles to Land Act. This registration was set aside by a previous judgment of the Court as an invalid title to the lands. Held, in a question with the trustee of the party who disponed the lands and the bonds together, that the right of the disponee to the bonds was merely personal, and could not compete with the trustee's completed title under the Act of 1858.
This case arose upon objection by Matthew Pettigrew, manufacturer in Glasgow, to a scheme of
Page: 102↓
ranking made up by William Johnston, accountant in Glasgow, trustee on the sequestrated estate of John Struthers, spinner and twister, Great Dove-hill, Glasgow. The only question related to a right of preference claimed by the objector, in respect of two bonds and dispositions in security acquired by Struthers, the bankrupt, in 1856, in corroboration of the disposition to him of the lands of Craighole or Craighoil, near Kilmun. Struthers took infeftment on the disposition of the lands; but the instrument of sasine made no reference to the assignation of the bonds, and the assignation to them was not recorded in terms of the 8th and 9th Vict., c. 31. Struthers conveyed the lands and bonds in 1859 to the objector by a disposition and assignation ex facie absolute, but alleged to have been in reality in security of advances made by Pettigrew. That deed was registered under the Titles to Land Act 1858; but the registration was reduced as a title to the lands by a judgment of this Division, June 16, 1865. It was now maintained by Mr Pettigrew that, although the registration gave no title to the lands, it was a good registration of the bonds under the Act of 1845. The trustee made up a separate title to the bonds by a notarial instrument under the Titles to Land Act 1858. He maintained that the bankrupt's right to the heritable securities having remained merely personal, there had been no valid transference of the real right to Mr Pettigrew by the recording of the assignation in terms of the 8 and 9 Vict., c. 31, § 1, that Act enabling such transmission to be effected only by a creditor infeft; and that transmissions of inchoate rights to heritable securities (now completed by notarial instrument under the Act of 1858) were not within the operation of the Act of 1845. He also pleaded that the bonds had been extinguished confusione when they came into the person of the proprietor of the lands, but this plea was not disposed of. The Lord Ordinary gave effect to the contention of the trustee, repelling the objections taken to the scheme of ranking and division, and approving of the same. The objector reclaimed.
A. R. Clark and Lancaster for him.
Gifford and Guthrie in answer.
At advising—
In reply to the objector, the trustee maintained that Struthers, the bankrupt, had no completed right in his person to these securities; that he was not infeft in them according to the old form, or registered assignee under the form required by the Act of the 8 and 9 Vict., and consequently held a title merely personal: that Struthers’ personal title, from his failure to register the securities or to infeft, left it free to the trustee to complete a real right to the securities, which he had done by expeding a notarial instrument, as directed by the Titles to Lands Act.
The question resolves, as it occurs to me, wholly into the matter raised under the statute of 8 and 9 Vict., as to the power under the provisions of that Act of the holder of a right to heritable securities, merely personal, to convey them to another, so that registration by that other party may complete a real right in him. It was argued that the trustee, by completing his own title, completed the bankrupt's right, and so must be held to have validated the right in Struthers, and so made the right of his assignee, the objector, complete by accretion. But it is impossible to listen to that plea, because the trustee did not make up his title to these bonds through a completion of the bankrupt's title to them. We have an instrument of sasine in the trustee's favour expede upon the precept contained in Fleming's disposition to Struthers for infeftment in the heritable securities, to which unexecuted precept he acquired right as trustee, and a notarial instrument in his own favour. There is no such registration of the assignation in Struthers’ person involved in the completion of the trustee's title as to give the least ground for the plea of accretion.
It is plain that Struthers, the bankrupt, had no more than a personal title. His title to Craigcoll was complete by expeding infeftment on the disposition in his favour by his author, Mr Fleming, the trustee upon the bankrupt estate of William Russel, in whose person the right to the property and the two securities in question, as corroborative of the right of property, was vested. An infeftment or a precept of sasine on the disposition in favour of Struthers could not possibly have the effect of making real the personal right conveyed by assignation of the bond.
If the holder of a personal right to heritable securities can effectually assign under the provisions of that Act, the obligator, Mr Pettigrew, will prevail; if the transmission can be effected only by one who is vested in the real right, the contention of Mr Pettigrew must fail.
The Act of the 8 and 9 Vict. was among the first of a series of statutes affecting conveyancing which have affected very considerable and beneficial changes. It proceeds to provide—[quotes section 1]. The provision applies to the case of heritable securities constituted by infeftment. The right, which may be transferred in the short statutory method, is the right of the creditor therein-that is, the right of the creditor in the heritable security so constituted may be transferred; and, the assignation being registered, the heritable security shall be transferred precisely as if sasine had followed upon an assignation. The creditor is defined to be, in the 12th clause, “the party in whose favour the heritable security is granted, or who is in the right thereof,” and the transference is of the right as vested in the creditor. Its completion by registration
Page: 103↓
The possibility of transmitting a right to securities in the old form, so that, after a series of transmissions of the original precept, an infeftment, taken at last, would complete the right, cannot affect the construction of this Act. It may be that a larger remedy might have been desirable; and that a holder of a merely personal right should have had the power of communicating such a right as would have placed the last holder registering in the position of the first of a series of intermediate holders, different and more complete than that of the immediate granter. I cannot find any such thing in the statute. The statute contemplates a transfer from a party vested in the real right to a party who becomes, by registration of the conveyance, a party holding the same quality of right which the granter of the conveyance had.
Reference was made to the schedules. Schedule No. 1 presupposes infeftment in the granter, “all as specified in the bond and disposition in security, and instrument of sasine thereon.” Note ( a) requires a statement of all the intermediate holders after the first. The assignees, if the statute is of the import stated, must mean registered assignees.
In Schedule No. 3 the case is given of an instrument in favour of an heir of a creditor who is assumed to die infeft in the security, and as to whom it is said that he acquired right by general or special service. It is plain that some peculiar meaning or effect is attached to the words “general service.” They can hardly be said to justify the inference that a personal right must be contemplated, as a general service is the appropriate mode of service in reference to such rights. In the case supposed the ancestor is infeft; and, where infeft, special service is necessary. The words must there, I think, be either disregarded or read as Mr Guthrie suggested—as applicable to the case where a general service is used, not as taking up a right, but to fix and ascertain who is in a particular relation. I think that we must adhere to the Lord Ordinary's interlocutor. The other Judges concurred. The interlocutor of the Lord Ordinary was accordingly adhered to.
Agent for Objector—John Ross, S.S.C.
Agent for Respondent—D. J. Macbrair, S.S.C.
