Scottish Court of Session Decisions

The Lord President said—I cannot say I have so much doubt on this point as Professor Bell had. In 1847 Mr Dixon conveyed the subjects to the Commercial Bank, and in 1854 that bank reconveyed them to him. In the interval Mr Dixon had granted, in 1849 a trust-deed to Mr Johnston, and thereafter in 1851, a supplementary trust-deed. The question is whether, when Mr Dixon got the reconveyance in 1854, the right he then acquired accresced to Mr Johnston. There is no mid-impediment. It has been argued that the conveyance to the Commercial Bank was granted in security merely, and there is strong ground for so holding; but I take the argument on the assumption that it was an absolute conveyance, and am of opinion that the right created by the reconveyance did accresce to Mr Johnston. I think that is the fair meaning of all the institutional writers before Professor Bell. But we have his doubts, and also the opinions expressed by Lord Ivory in the case of Munro. I don't mention Lord Mackenzie, because I think any doubt expressed by him in Munro's case had disappeared before the subsequent case of Glassford occurred. He did not adhere to his doubt in that case. Professor Bell no doubt seems to have died possessed of his doubt. But it is only a doubt; and I cannot throw out of view the statement made by Mr Bell himself that the late Mr Robert Jamieson did not agree with him. Mr Jamieson was a man of high position and authority in questions of this kind, and although he was not professor of law in the University, I am inclined to place as much reliance on his opinion as if he had been.

Lord Curriehill—The question is whether Mr Johnstone had power in 1854 to convey to Mr Bunten. His title consisted of two trust conveyances by Mr Dixon in which he had a power of sale. The objection taken is that Mr Dixon had divested himself in favour of the Commercial Bank before he conveyed to his trustee. I have no doubt that the conveyance to the bank was in security merely, but as there is no evidence of that ex facie of the deed, I assume that it was absolute. Now, was the power of sale effectual, Mr Dixon having previously divested himself? The reply is that in March 1854, a month before the power of sale was exercised the subjects had been reconveyed to Mr Dixon. There was no mid-impediment. The party who had granted the power of sale was reinvested be fore it was executed. I have no doubt that that right accresced to Mr Johnston. I concur entirely as to the retrospective effect of a conveyance granted to a person who had previously been vested and as to its accrescing to his disponee if there be no mid-impediment. I look upon this as an elementary principle of our law. And it is not inconsistent in any way with the rules of feudal law. On the contrary, the effect of a charter of confirmation is, by the common feudal law, irrespective of statute, retrospective to the date of the last entry, and it extinguishes all mid-superiorities created in the interval. The feudal law is therefore not repugnant to the doctrine of accretion.

Lord Deas—I take the case on the same footing, and assume that the conveyance by Mr Dixon was an absolute one, and that the Commercial Bank was infeft as absolute proprietor. When so denuded Mr Dixon granted this deed to Mr Johnston, and having been thereafter reinvested, the question is, whether that reconveyance accresces to his disponee. It is Mr Bell's doubt alone that gives importance to this case; but the doubt is expressed by no one else. The doubt expressed by Lord Ivory and Lord Mackenzie is of a different nature altogether. Their opinion was that if the granter had a mere missive of sale there could be no accretion. It humbly appears to me that that view is unsound. Their objection would equally apply to a disposition with neither procuratory nor precept of sasine, or to a disposition in all respects formal, but having a flaw in the precept, and therefore incapable of being followed by valid infeftment. If Lord Ivory was right there never could be accretion in such cases; but our law recognises bargains as to heritable subjects, although the seller has no right at the time; and it is the doctrine of accretion that meets such a case. The case of Keith v. Grant, which was referred to, differs from the present, because the question there arose with the granter's heir.

Lord Ardmillan arrived at the same result. He thought that the doctrine of accretion had its root in equity. It was a remedy for a wrong, not repugnant to feudal rules and taking feudal effect, whereby, wherever there was a conveyance by a person having no title or an imperfect one, his disponee acquired right to any title or muniment of title subsequently acquired by him, and of which good faith forbade that he should be deprived. The maxim jus superveniens auctori accrescit successori was not a feudal maxim. It is not put by Lord Stair as one, and it applies more strongly in a case where there is no title, than in one where the title is only inchoate just because the wrong is all the greater.