Scottish Court of Session Decisions

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Cite as: [1865] SLR 1_20_1, [1865] ScotLR 1_20_1

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Friday, Nov. 10. 1865

1 SLR 20_1

Campbell

v.

Bertram's Trustees.
Headnote:

This action was raised by Sir Archibald Islay Campbell of Succoth, against the trustees of the late James Bertram, engineer and millwright in Edinburgh, for the purpose of declaring the irritancy, under the Act 1757, of a feu-contract of certain subjects in Leith Walk, in respect of the defender's failure to pay feu-duty for two years. The defenders pleaded inter alia that the pursuer had no title to sue the action, and the question thus raised was one purely of conveyancing.

It appeared that Alexander Wight, W.S., held the subjects in question under a charter from the town of Edinburgh, as trustees of Trinity Hospital, and that in 1796 he granted a sub-feu to a person named Cooper, and that the defenders were the successors of Cooper. But in 1811 Wight, being then the debtor of a person named Howie to the extent of £600, granted to Howie a deed by which, it was said by the pursuer, he had transferred his right of mid-superiority. If he had divested himself, then it was clear that the superiority had passed to Howie, whose successor Sir Archibald Campbell now was. Lord Jerviswoode repelled the objections to title, and the defenders reclaimed. To-day the Court altered the Lord Ordinary's interlocutor, sustained the objections, and assoilzied the defenders, with expenses.

Judgment:

Lord Curriehill delivered the judgment of the Court. He said that the whole question turned on the nature of the deed of 1811. There was no question that this deed was granted in security of debt; but a person granting a conveyance in security may do so in two ways. He may either grant an absolute conveyance—receiving a back letter or other writing—or he may grant a deed which forms an incumbrance on his property, the radical right remaining in himself. The deed in question differs from the ordinary bond and disposition in security because it contains no personal bond and no power of sale. But it contains a full recital of a debt due by the granter to the grantee. On the narrative of that debt, and in consideration of the creditor agreeing to supersede payment of the debt till 1812, the deed states that the granter had agreed to grant the “disposition and assignation in security underwritten.” Then the deed proceeds to sell, alienate, and dispose the subjects to the grantee, but in gremio of the dispositive clause are the words, “but under redemption by payment making of the aforesaid sums in manner underwritten.” This refers to and incorporates with the dispositive clause a declaration in the precept of sasine that the subjects were to be held redeemably, This is, therefore, a qualification of the dispositive clause. Consequently this is not an absolute disposition, but a qualified one. The words “in security” do not occur in the dispositive clause, but I do not think they are necessary there as a vox signata. The obligation to infeft and the procuratory of resignation also refer to the redeemable nature of the right. Mrs Howie was infeft on this disposition so qualified, and that right was confirmed by the superiors. The question therefore is this—Had Wight, when he granted the deed of 1811, ceased to be the vassal of the town of Edinburgh, and the superior of Cooper, or did his right still continue, but burdened with this incumbrance? I am very

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clearly of opinion that he retained his right. The point is ruled by the elementary rule in conveyancing, that when a deed constituting a security contains in gremio a right of reversion, it is a mere incumbrance; but when, on the other hand, the conveyance is ex facie absolute, with a reservation in a separate writing, the absolute fee is in the disponee, and the reservation is a mere personal contract, not requiring to be published to the world, and not therefore binding on singular successors.

Counsel:

Counsel for Pursuer—The Lord Advocate and Mr Tait. Agents— Messrs Tait & Crichton, W.S.

Counsel for Defenders— Mr Gifford and Mr Thoms. Agents— Messrs Scarth & Scott, W.S.
1865