Scottish Court of Session Decisions

Subject_1 PART I.

ADJUDICATION.

David Campbell and Others,
v.
The Common Agent, in the ranking of the Estate of Edderline

Date: 14 January 1801
Case No. No. 11.

A person before being rendered legally bankrupt, having executed a trust-deed, by which the trustees were empowered to sell as much of his estates as should pay his debts, and entail the remainder on a certain series of heirs, it was found, that the granter was not so far denuded of his property as to invalidate an adjudication led after his death, by certain non-acceding creditors, upon a special charge given to his heir apparent.

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Dugald Campbell's affairs being embarrassed, he conveyed his estate of Edderline to trustees for behoof of his creditors. At the date of the trust-disposition, he had not been rendered legally bankrupt.

By the trust-deed, the lands were conveyed to the trustees, and the survivors or survivor of them, absolutely and irredeemably, for behoof of the granter's whole creditors. The trustees were also empowered, without the consent either of the granter or of his creditors, to sell such parts of them as should be sufficient to pay the whole of the truster's debts; and after doing so, the trustees were appointed to execute a strict entail of the residue. The trust-deed was further declared irrevocable, until the whole purposes of the trust should be fulfilled.

The trustees were infeft, and acted under the trust-deed. The granter died soon after the date of its execution. Soon after his death, an heritable creditor brought a judicial sale of his estate.

After the commencement of this action, several other creditors led adjudications against the estate, having previously used special charges against Colin Campbell, as Dugald Campbell's eldest son and heir.

Dugald Campbell, at the date of the trust-deed, was indebted to Neil Campbell of Inverliver in upwards of £2000. Inverliver's affairs were also under trust, and his trustees, by way of securing this debt, also led an adjudication of the estate of Edderline, but in place of charging Edderline's son to enter heir in special to his father, they took a decree of constitution against his trustees, under the qualification that they should not be personalty liable, and on this decree they led their adjudication.

Afterwards, in the process of ranking and sale, they objected to the validity of the adjudications led by the other creditors, and

Pleaded: Before the date of these adjudications, Edderline was completely divested of the lands by the trust-deed. His right had resolved into a mere claim to the reversion; 7th March 1781, Muir against Macadam, No. 114. p. 8688. In consequence of the infeftment of the trustees, Edderline's son could not have been served heir in special to his father, because a service proceeds on the assumption, that the ancestor died last vest and seized in the lands, and if a special service was incompetent, the special charge which was meant to supply its place must be equally inept; 11th March 1756, Dalziel against Henderson, No. 42. p. 16204. The only regular adjudication, therefore, is that which has been led against the trustees.

The Lord Ordinary found, “That the late Dugald Campbell of Edderline was not completely divested of the real right and property of his estate, by the trust-right and infeftment thereon, founded on by the objectors, the same having been a trust For the granter's behoof, though it contained a power to the trustees of selling the lands, for the purpose of paying off the granter's debts, but which power the trustees never exercised, and still stood bound, in the event of a sale, to reconvey or settle the remainder for behoof of the granter and his heirs, which did not disable his lawful creditors, not acceding to the trust-deed, from doing diligence against himself while he lived, or against his apparent heir, after his death, for payment or security of their debts; and therefore repelled the objections to the adjudications led by the other creditors against the son and the apparent heir of their debtor after his decease.”

A reclaiming petition, presented by the trustees of Inverliver, was unanimously refused, without answers.

Lord Ordinary, Justice-Clerk Eskgrove. For Inverliver's Trustees, Fletcher. Clerk, Home. Fac. Coll. No. 210. p. 480.