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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Flowerdew v Buchan [1835] CA 13_615 (5 March 1835)
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Cite as: [1835] CA 13_615
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SCOTTISH_Shaw_Court_of_Session
Page: 615↓
v.
Subject_Assignation.—
A liferentrix under a deed of settlement having granted an assignation to the tents of the property liferented, from and after the Martinmas succeeding and during her life, and to the deed itself, in so far as it related to these rents, substituting the assignee in her full right therein—held, in a question with a posterior adjudger, that an intimation to the tenant possessing, though made prior to the term of Martinmas, was a valid completion of the assignation.
Mrs Eliza Foreman, under the trust-deed of settlement of her husband, deceased, had a right of liferent over certain premises in St Andrews. Of date, 16th June, 1829, she executed an assignation in favour of the defender, Buchan, whereby, in consideration of the sum of £100 acknowledged to have been received from him, she constituted him, and his heirs and assignees, her “lawful and irrevocable assignees and cessioners, not only in and to the whole rents and duties of the subjects above specified, to which I am provided in liferent as aforesaid, and that from and after the term of Martinmas, 1829, and in time coming, during my life, with all action and execution competent to me for the same, but also in and to the said trust-disposition and settlement in my favour, and whole clauses thereof, so far as relates to the said rents: Surrogating and substituting the said John Buchanan and his foresaids in my full right and place of the premises, with full power to him and his foresaids to grant receipts and discharges,” &c.
The premises to which this assignation had reference were possessed by tenants, and, on the 9th July, Buchan had the assignation intimated to them. In September following, the pursuer, Flowerdew, a creditor of Mrs Foreman, raised a summons of adjudication, on which he obtained decree, in January, 1830, adjudging, inter alia, her liferent right above mentioned. A competition having arisen between Buchan and Flowerdew, in an action of maills and duties, against the tenants, which was brought into this Court by advocation, the latter instituted a reduction of the assignation in favour of the former, on various grounds, of which it is only necessary at present to advert to the following, viz. That the time of entry under the assignation not being till Martinmas, 1829, the intimation in the July preceding was inept to complete the assignation, while the right had been effectually attached by his adjudication in January following.
In defence against this reason of reduction, it was pleaded, that an assignation is not like an arrestment, which can only attach debts actually fallen due or current, but properly carries all future prestations falling under the right assigned; that here the right of liferent truly was assigned, and was therefore properly completed by intimation in July, although the rents to fall under it were not to become due till Martinmas; and that
The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: *—“Repels the objections stated for the pursuer and advocator to the validity of the defender's assignation, as not being duly completed, either by actual possession, or due or timeous intimation; before answer as to the charge of fraud at common law, appoints the cause to be enrolled, that parties may state in what way they propose the disputed facts as to the onerosity of the defender's debt, and the solvency or insolvency of the cedent at the date of the assignation, to be established; reserving, in the mean time, all question as to expenses.”
_________________ Footnote _________________
1 Feb. 12, 1816 (F. C.)
2 Feb. 6, 1824 (ante, II. 682).
* “There was a separate and very elaborate argument on the first point decided by this interlocutor. The pursuer at one time maintained that the assignation could be completed only by actual possession. But the Lord Ordinary never had any difficulty as to this. The assignation is primarily of the rents and duties, and of the liferent right itself, only ‘in so far as relates to these rents;’ and it is admitted that the subjects were at the time under lease to tenants who had a title of permanent possession, and by whom they have ever since been possessed.
“The main objection, however, was, that as the assignation was only to the rents falling due ‘at and after Martinmas 1829,' and as the only intimation to the tenants was previous to that term, viz. in July 1829, at which time it is said the tenants were in no respect debtors to the assignee, so the intimation was altogether inept, and could carry nothing in competition with a posterior adjudger insisting in an action of maills and duties.
“The point perhaps is not entirely without difficulty. But the Lord Ordinary holds it to be substantially settled by the decisions in the case of Hope and M'Caa v. Waugh, 12th February, 1816, and Russel v. M'Dougal, 6th February, 1824. In the former, though the discussion was mainly on another point, the very objection now insisted on presented itself, if possible, in a stronger shape than here, since not only was the intimation made when no rents were due by the tenant, but it was found effectual, even as to the rents of a future year, coming afterwards into the hands of the factor, to whom also it had been made, by anticipation. In Russel's case, the assignation was of a fiar's interest in a subject burdened with a liferent; and though intimation was made to trustees no less than eighteen years before the liferent fell in, the right of the assignee was found preferable to that of the adjudging creditors of the fiar, who completed their titles after the liferent had fallen.
“The radical fallacy of the pursuer's argument seemed to be in considering the intimation of an assignation as more closely analagous to the using of an arrestment, than it really is. They agree no doubt in this, that both, in order to be effectual, must be used in the hands of a debtor. But arrestment will not cover either what is properly a future, or a contingent debt, whereas an intimated assignation will generally carry both. Thus, not to go beyond the class of cases to which the present belongs:—An arrestment laid in the hands of a tenant will only cover the rent actually due, or for the term then current; but an assignation, regularly intimated, will carry all future rents, as long as the landlord and tenant remain the same, in the same way as an assignation of the principal lease, when intimated to a sub-tenant, will carry all future sub-rents while the sub-tenant continues in possession. These cases seem indeed to the Lord Ordinary to be decisive of the present question; for if an intimation made this year will carry the rents for the year ensuing, it is difficult to see, why an intimation made last year should not carry the rents of this. The principle seems to be, that tenants under a lease are debtors ab initio for all the rents to fall due till its expiration, and the primary purpose of intimation being to certiorate them of the transference of the jus exigendi, it is enough if they are formally certiorated, before any computing claim is established.
“Upon the second point, as the pursuer refuses to admit the specific allegations of the defender (though he has not met them by any specific contradiction), some further investigation, probably before an accountant, will be necessary. The Lord Ordinary has no serious doubt of the defender being an onerous holder of the assignation in question; but the fact may be easily established; and as to the cedent's solvency, if it shall turn out, that, at the date of the assignation, her whole debts, including the £100 to the defender, did not exceed £300, and that she had a life-annuity of £65 a-year, he has no idea that the pursuer can possibly make out a case of insolvency with reference to such an action as the present; especially as it is admitted that the defender, in security of his debt of £100, only took an assignation to the extent of £9 of the annuity, leaving a fund of £55 per annum, to satisfy the remaining £200 of her debts. It seems a sufficient answer to the argument for the cedent's insolvency, founded on her having been notour bankrupt by imprisonment, and being reduced to sue for aliment on the Act of Grace, and for liberation in a cessio bonorum, that all this was brought about by the acts of the pursuer himself, that it was by him that she was thrown into prison, and that he was the only opposing creditor in the processes of aliment and cessio. These things were scarcely denied at the Bar. But it is right perhaps that they should now be formally instructed or admitted. The Lord Ordinary thinks this in every way an unfit case for a jury, and is humbly of opinion that justice will be best done to it by a remit to an accountant.”
Flowerdew reclaimed, and contended that there was a distinction between this case and that of Hope, inasmuch as there the translation was into the right itself, while here it was rather a simple assignation to the rents than to the liferent right. The Court, however, held that the two cases were substantially the same, and Adhered to the Lord Ordinary's interlocutor.
Solicitors: W. Miller, — P. Pearson.—Agents.