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Subject_Process—Ranking and Sale—Sasine.—
1. A process of sale and ranking was raised by a party standing infeft as a real creditor: after it had proceeded so far that the lands were sold, and decree of sale was pronounced, but not extracted, the purchaser presented a bill of suspension as of a threatened charge for the price, in respect that the sasine of the pursuer was erased in substantialibus; and a real creditor having then sisted himself as pursuer, the Court thereupon repelled the reasons of suspension. 2. Question as to the effect of the date of the year of the King's reign in a sasine, being written on an erasure.
In 1811, the late Alexander Hume of Harris disponed the estate of Harris to his son, Alexander Norman Macleod. The disposition was granted under the burden of an annuity of £300, in favour of Miss Lavinia Hume Macleod, sister of the disponee, which was declared to
It appeared that Macleod was duly infeft in one portion of the estate of Harris, independently of the sasine in his favour in 1812.
Before the decree was extracted, Lord Dunmore objected, that the whole process, and decree of sale, were irregular and inept, in respect that, in Macleod's sasine of 1812, the word “ third” indicating the year of the King's reign, was written upon an erasure, and the sasine was therefore null, according to the recent decision in the ranking of Land. 1 And as the real right of Mrs Ferrers, together with that of the marriage trustees, who derived from her, was dependent on this sasine, it followed that they were mere personal creditors, if the sasine was a nullity; and, consequently, that they were not entitled to institute the process of sale and ranking.
The Lord Ordinary ordered Cases.
Before they were discussed, a petition was presented to the Court by Misses Margaret and Elizabeth Bell, stating the difficulty which had arisen, and, as undoubted real creditors, of the common debtor, craving authority “to sist themselves as pursuers of the depending process of ranking and sale, and to take up the same, and carry it on to its final issue, for the common behoof of the whole creditors, and to remit to the Lord Ordinary to proceed accordingly.”
The petition was taken to see, after which it was granted.
Pleaded by the Common Agent—
1. By the articles of roup, Lord Dunmore was bound to satisfy himself of the sufficiency of the title he was to obtain under the decree of sale; and it was too late now to take any objection. 2
2. The erasure in the sasine was not admitted to be fatal, and the case
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1 Smith, Feb. 13, 1835, ante, 461.
2 Hay, July 10, 1783 (14183); Carruthers, May 26, 1825 (ante, IV. 34); Sorlie's Trustees, Feb. 14, 1832 (ante, X. 319).
3. But, even if the sasine 1812 was reducible, the objection was ill-founded; the process had been raised by a party who was, ex facie, a real creditor, and who was then recognised as such by all concerned. It was a process raised, optima fide, not only for behoof of that creditor, but for the behoof of all the creditors, who were thus, in substance, co-pursuers, the only proper defender being the bankrupt. After the process was brought into Court, a common agent was accordingly appointed, and all farther procedure was at his instance. And as due intimation had been made, and a sale effected, the purchaser, by paying or consigning the price, would be secure against all hazard, as the statutes 1681, c. 17, and 1695, c. 6, had limited the recourse of the bankrupt and his heirs or creditors, to take effect merely against the receivers of the price, and not against the purchaser. His protection was, therefore, complete, and it had been so found in cases much stronger than the present. 3 But separately, it was provided by Act of Sederunt, 23d November, 1711, § 4, “That if the pursuer of a process of sale and ranking shall, during the dependence, die, or forbear to insist, or if his title and interest shall happen to be satisfied and extinguished, the factor, if any be, or, otherwise, any other real creditor, may, upon special warrant from the Lords, take up the process where it left off, and carry it on to its final issue, for the common behoof of the whole creditors.” And as the Misses Bell, who were real creditors, had now been sisted as pursuers, this was enough to cure any defect otherwise existing, and to render the whole proceedings unchallengeable.
Pleaded by Lord Dunmore—
1. The articles of roup were never meant to bar a purchaser from stating a radical objection to the whole process of sale itself. And, even in regard to the mere progress of titles,
* it had been repeatedly
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1 Gaywood, June 19, 1828 (ante, VI. 991); Earl of Cassilis, June 2, 1831 (ante, IX. 663).
2 2 Cr. 2, 7
3 2 Bell, 278; Cooper, June 21, 1720 (14171); Dundas, Nov. 9, 1739; (Elchies voce Ranking and Sale, No. 5); Blackwood, Jan. 4, 1749 (11999); Middlemore, March 5, 1811 (F. C.); Stewart's Creditors, Feb. 29, 1812 (F.C.); E. of Wemyss, Feb. 25, 1824 (2 Shaw, App. Cases); 54 Geo. III. c. 137, § 10.
* Some minor objections had been pleaded, particularly that the letter E in the word “Eighty,” indicating the year of grace in another sasine, was written on an
2. The erasure in the sasine 1812 was fatal, and the sasine a nullity. The right of Mrs Ferrers thus resolved into a personal right, and the marriage trustees, being infeft only on a precept flowing from her, were mere personal creditors also. They, therefore, could not raise an action of sale.
3. The process of sale was altogether statutory, and unless carried through in terms of the regulating statutes, it was inept. By 1681, c. 17, a judicial sale was “authorized and empowered, upon a process at the instance of any creditor having a real right.” Laying aside the instance of an apparent-heir (which did not occur in this case), a process of sale could not be raised, except at the instance of a real creditor. He alone was the statutory pursuer. The Act of Sederunt, 1711, did not, and indeed could not, alter this enactment. It provided that if the pursuer died during the dependence, or failed to insist, or had his interest extinguished, “the factor, if any be, or otherwise, any other real creditor,” might be authorized to carry on the process where it left off. This enactment necessarily assumed that the statutory process had, in the first instance, been duly raised; and accordingly it was only any “other” real creditor, or the factor, who was to be empowered to carry it on. After the process had been duly raised in terms of the statute, this remedy would apply; but it could not have the effect of making a valid process, where there had been, in truth, no pursuer to raise process under the statute.
The sisting of the Misses Bell was therefore inept to cure the radical defect of there having been no competent pursuer to raise the process, or constitute a dependence. And this was the more apparent, as the process had been carried the length of a decree of sale before they were sisted. The existence of a common agent never could supply the want of an original pursuer, as the latter must first exist before a common agent can effectually be appointed; and his office does not come in lieu of a pursuer, otherwise there would have been no room for the provision in the Act of Sederunt for carrying on the process, under special warrant, where the original pursuer fails. 2
_________________ Footnote _________________ erasure. But the 3d plea was that to which the opinions of the Court bore special reference.
1 Waddel, June 19, 1828 (ante, VI. 999).
2
2 Erek. 12, 63.
The Court pronounced this interlocutor:—“Repel the reasons of suspension, and find the charge orderly proceeded in respect of the reasons stated by the charger; and also in respect that Misses Bell have been allowed to sist themselves as concurring pursuers in the sale and ranking, and find no expenses due.”
Solicitors: Taits and Young, W.S.— W. Dickson, W.S.—Agents.