Scottish Court of Session Decisions

Lord justice-Clerk—In this case William Johnston, trustee on the sequestrated estate of John Struthers, presents a petition to the Court for approval of a scheme of ranking, under which he claims payment to himself, for behoof of the general creditors of the bankrupt, of the price of an estate which belonged to the bankrupt called Craigcoll, which had been brought to sale after deducting certain burdens, and, among others, the sum secured by a valid bond and disposition in security in favour of the trustees of the marriage-contract of parties of the name of Richards. The proposal is objected to by Matthew Pettigrew, who alleges that he is in right of two securities which, he says, form real burdens on the estate. By a former judgment of the Court, it was found that his claim to the property of the estate, founded on the same deed which assigned to him these securities, was bad, by reason of defective registration. The title to the property was sought to be completed by registration under the Titles to Lands Act, the provisions of which, as to the mandate authorising registration, were neglected. The same objection does not attach to the registration of heritable securities where no mandate to register is required; and he says that the assignations to these securities contained in his disposition being actually on the register of sasines, the right in his person is completed.

In reply to the objector, the trustee maintained that Struthers, the bankrupt, had no completed right in his person to these securities; that he was not infeft in them according to the old form, or registered assignee under the form required by the Act of the 8 and 9 Vict., and consequently held a title merely personal: that Struthers’ personal title, from his failure to register the securities or to infeft, left it free to the trustee to complete a real right to the securities, which he had done by expeding a notarial instrument, as directed by the Titles to Lands Act.

The question resolves, as it occurs to me, wholly into the matter raised under the statute of 8 and 9 Vict., as to the power under the provisions of that Act of the holder of a right to heritable securities, merely personal, to convey them to another, so that registration by that other party may complete a real right in him. It was argued that the trustee, by completing his own title, completed the bankrupt's right, and so must be held to have validated the right in Struthers, and so made the right of his assignee, the objector, complete by accretion. But it is impossible to listen to that plea, because the trustee did not make up his title to these bonds through a completion of the bankrupt's title to them. We have an instrument of sasine in the trustee's favour expede upon the precept contained in Fleming's disposition to Struthers for infeftment in the heritable securities, to which unexecuted precept he acquired right as trustee, and a notarial instrument in his own favour. There is no such registration of the assignation in Struthers’ person involved in the completion of the trustee's title as to give the least ground for the plea of accretion.

It is plain that Struthers, the bankrupt, had no more than a personal title. His title to Craigcoll was complete by expeding infeftment on the disposition in his favour by his author, Mr Fleming, the trustee upon the bankrupt estate of William Russel, in whose person the right to the property and the two securities in question, as corroborative of the right of property, was vested. An infeftment or a precept of sasine on the disposition in favour of Struthers could not possibly have the effect of making real the personal right conveyed by assignation of the bond.

If the holder of a personal right to heritable securities can effectually assign under the provisions of that Act, the obligator, Mr Pettigrew, will prevail; if the transmission can be effected only by one who is vested in the real right, the contention of Mr Pettigrew must fail.

The Act of the 8 and 9 Vict. was among the first of a series of statutes affecting conveyancing which have affected very considerable and beneficial changes. It proceeds to provide—[quotes section 1]. The provision applies to the case of heritable securities constituted by infeftment. The right, which may be transferred in the short statutory method, is the right of the creditor therein-that is, the right of the creditor in the heritable security so constituted may be transferred; and, the assignation being registered, the heritable security shall be transferred precisely as if sasine had followed upon an assignation. The creditor is defined to be, in the 12th clause, “the party in whose favour the heritable security is granted, or who is in the right thereof,” and the transference is of the right as vested in the creditor. Its completion by registration

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