Scottish Court of Session Decisions

The late Robert Thomson, by his trust-disposition, conveyed certain subjects in Hutcheson-street, of Glasgow, to his trustees. On 15th March, 1824, Robert and Adam Monteith, two of the truster's grandchildren, who were entitled to a share in his succession under the trust-deed, addressed the following letter to the trustees:—“We agree to purchase from you the whole property in Hutcheson-street, belonging to Mr Thomson's estate, at the price of £5300 Sterling, the price to be payable at Whitsunday next, when our entry is to commence.” The trustees accepted the offer; and the purchasers, on 15th May following, intimated that it had been made for behoof of four of the grandchildren of the truster. The price was never paid. In July, 1826, Robert and Adam Monteith became bankrupt, and Thomson's trustees wrote to the trustees on their respective sequestrated estates in these terms:—“On the 15th March, 1824, Adam Monteith, along with Robert Monteith, his brother, entered into missives of sale with the trustees of the late Mr Robert Thomson, senior, by which the trustees sold to them certain subjects in Hutcheson-street, at the price of £5800, payable at Whitsunday, 1824. This purchase has never been implemented, and both Robert Monteith and Adam Monteith being now bankrupt, the trustees of the late Mr Thomson are desirous to know whether the creditors are disposed to take the property, in terms of the missives. You are the trustee upon Mr Adam Monteith's estate, and therefore it will be necessary that you consult the commissioners as to the matter, and let me know their and your determination. I have written Mr Paul, the trustee on Mr Robert Monteith's estate, to the same effect.”

The trustees on the estates of Robert and Adam Monteith intimated their resolution to abandon the purchase. Thomson's trustees proceeded to sell the subjects in Hutcheson-street by public roup, in November, 1827, and obtained a price of £4116, being £1196 less than the price agreed to be paid by the missives of Robert and Adam Monteith. They adopted these steps without craving any judicial sanction for their proceedings, or making the trustees of Robert and Adam Monteith parties.

In a multiplepoinding subsequently brought by Thomson's trustees, for the purpose of dividing the residue of Thomson's trust-estate, claims were made by the trustees of Robert and Adam Monteith, on account of the shares destined to them. Thomson's trustees claimed a right of retention of these shares, on account of a claim of damages for the non-implement of the sale of the trust-subjects on 15th March, 1824, to Robert and Adam Monteith, which had rendered a re-sale necessary, at a loss of £1196 to the trust. The trustees on the sequestrated estates of Robert and Adam Monteith resisted this claim, and contended that no damages were due, in respect that Thomson's trustees had asked whether they were to take the property, and on its abandonment being notified, had proceeded to sell it without craving judicial authority, or even making the creditors of Robert and Adam Monteith parties to their proceedings. They could only have done so on the footing that they had acquiesced in the abandonment made by the trustees of Robert and Adam Monteith, and had resumed the property to themselves; and that the whole responsibility of these proceedings affected their interests alone. They would have been entitled to any gain made upon a re-sale, and must bear any loss.

The Lord Ordinary “repelled the claims of Robert Thomson's trustees, against the estate of Robert and Adam Monteith, for damages on account of the trustees of the said Robert and Adam Monteith declining to implement the bargain for the property in Hutcheson-street, concluded by the missives which passed between Thomson's trustees and the said Adam and Robert Monteith, in March, 1824.” ^*

Thomson's trustees reclaimed.