Scottish Court of Session Decisions

Mr Dunlop has a security constituted by an ex facie absolute disposion in his favour. I am of opinion that we must deal with the case on the footing of this being a perfectly valid disposition. I reject as proper elements for deciding this question the views submitted by Mr Pattison as to the supposed trust of the heir of entail under the unregistered deed of entail as affecting the transmission; but, assuming it to be valid, it does not establish any special amount of debt. It is a security for advances made, and advances to be made, and there are no materials in gremio of the deed which can ascertain the amount of advances, or liquidate the debt, or fix its amount, in a question with the heir of entail. This remains to be ascertained. The heir denies the debt altogether. Mr Gordon refers us to the fact of Mr Dunlop having ranked upon the bankrupt's estate for upwards of £13,000, wltereas Duntiblae is said not to exceed in value £9000. But as against the heir the statement of the trustee and creditors is not conclusive; and as all advances which Mr Dunlop may have made to the late Peer down to his death are claimable in the sequestration, while no debt contracted subsequent to 19th July 1860—the date of his succession to the peerage—can affect the heir of entail, it may very well be, for aught that we can know, that the bulk of the claim may have arisen on transactions subsequent to the occurrence of that which has been held to have made the late Lord a trustee for the heirs of entail. In any view the debt is disputed; and, although the form of security taken has many advantages, it is subject to the disadvantage that it does not per se instruct any specific amount to be due.

I do not see why Mr Dunlop and Mr Howden, as his assignee, should not proceed to realise their debt by the ordinary processes of law. I should have held it to form a sufficient objection to a petition to sequestrate at their instance that they were heritable creditors only, and had all the remedies of the law open to them to follow for making their heritable debt effectual. If I am right in holding that the intervention of the Court is an exceptional act, I am at a loss to see how the respondents could distinguish their case from that of any large creditor upon an estate, and if any creditor who says—the fact being disputed—that he has a security which will, when examined, turn out to be of a greater amount than the value of the estate is entitled to get the estate sequestrated, we shall have numerous estates under our administration.

If it be clear that a sequestration would have been properly refused had there been a ‘petition to sequestrate, it seems to me to go far to support the view that the sequestration should be recalled. I think that the Court should not interfere with the exercise of the rights of property by an owner unless where there is a clear benefit to result from it, and, where there has been such interference, and where there is no benefit to result from its being continued, it should stop. It would, in my view, require a very slender case of alteration of circumstances to justify an act otherwise recommended by its giving to a proprietor the possession of his estate without injuring any tangible interest of any other party.

I think that there has been amaterial alteration of circumstances since the sequestration was granted. It was granted on concurring applications of the then heiress of entail and Mr Dunlop, at a time when the nature and extent of Mr Dunlop's claims under the deed of 1859, and another deed of 1854, were not ascertained. The extent of the debts claimable against the estate in the person of Mr Dunlop, and of other creditors of the late Lord, were then viewed as possibly extending to debts contracted subsequent to. as well as before his succession to the peerage, and the recent decision in the House of Lords proves that there is not now any competitor for the fee of the estate. I think that this alteration of circumstances is sufficient to justify us in reconsidering the propriety of continuing the sequestration, and, on these grounds explained, 1 concur with your Lordships that it should be recalled.

The other Judges concurred.