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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Will v. Elder's Trustees [1867] ScotLR 5_8 (6 November 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0008.html
Cite as: [1867] SLR 5_8, [1867] ScotLR 5_8
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
v.
Facts:
Heritable property, belonging to several parties jointly, was adjudged for their joint debt. Held that one of the co-obligants was not entitled, on tendering payment of the whole balance due, to obtain from the creditor an assignation of the security in so far as it included the shares of the property belonging to the co-obligants other than himself.
The pursuer in this action was John Will, Broughty-Ferry, and the defenders were the trustees of the late David Elder, flesher there. It appeared that the pursuer and his brothers and sisters were joint owners, in certain proportions, of certain property in Broughty-Ferry. In 1844 David Elder advanced money for behoof of these parties, and in 1852 he obtained decrees of constitution against them, jointly and severally, for the amount due. Thereafter he obtained decree of adjudication, adjudging the whole subjects in security of the
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debt. Infeftment followed upon this decree, and Elder, and subsequently the defenders, possessed the subjects and drew the rents, which were applied pro tanto to extinguish the debt and interest. A balance was still due to the defenders. The pursuer, one of the co-obligants in the debt, now brought an action concluding, inter alia, that the defenders should be ordained to accept payment from him of the whole balance due to them, and on receipt thereof to assign to him, for the purpose of his operating his relief, the security constituted in their favour by the decree of adjudication. The defenders objected, but offered to take payment from the pursuer of the proportion of the debt due by him, and thereafter to convey to him the security so far as extending over the portion of the subjects belonging to him.
The Lord Ordinary ( Jerviswoode) sustained the plea of the defenders. He thought that the pursuer had no equitable or legal foundation for his demand. The defenders were accountable to other parties besides the pursuer. The pursuer's discharge could not, he thought, free the defenders of all question or liability to account to the other parties whose subjects were embraced within the adjudication; and, if so, the defenders were entitled to hold until called on to denude by the parties in whom the true and radical right was vested, and with whom they were in entire safety to deal.
The pursuer reclaimed.
Monro and Mackintosh for him.
Gifford and J. Hunter in reply.
Lord President—I am not surprised that there is no authority cited to us by the pursuer, for the proposal is perfectly unreasonable. One of several correi debendi proposes to the creditor to pay off the balance of debt, and thereupon to obtain as his right an assignation to an adjudication, not of his own estate but of the estate of all the correi debendi. Now, what is the position in which the creditor would be placed if he acceded? He would have taken payment of a sum of money, but he would not have got the balance of his debt ascertained in such a way as to be binding on the other debtors, and they might come home and say to this creditor, why you are paid long ago, and more than paid, by intromissions with our estate. That is conclusive of the whole matter. Every demand of this kind must be founded in equity, but there is nothing of that here. I think the Lord Ordinary was right.
The other Judges concurred.
Adhere.
Solicitors: Agents for Pursuer— Hill, Reid and Drummond, W.S.
Agent for Defenders— Wm. Mitchell, S.S.C.