Scottish Court of Session Decisions

By disposition, dated 14th July 1863, Mrs Macdonald, with consent of her husband, disponed certain premises in Dundee to the late James Stewart and his heirs, in trust for certain purposes therein stated. The disposition proceeded on the narrative that the subjects were held in security by Peter Geekie for the sum of £1350, under an absolute disposition with back bond, and that Peter Geekie had agreed to advance the additional sum of £550 on the security of the subjects, and on the further narrative that James Stewart had become a cautioner for the last-mentioned sum of £550, as also for £150 of the sum of £1350. The subjects were also burdened with a first security of £600, though this was not mentioned in the deed.

The purposes of the trust were stated as follows:—“(1) That the said James Stewart and his foresaids shall duly and regularly pay the interest due and to become due on the foresaid debts to the said Peter Geekie, together with all premiums of fire insurance, and all costs of loans and penalties incurred or to be incurred in reference to the premises. (2) That the said James Stewart and his foresaids shall duly pay the costs of and attending these presents, and the public and parochial burdens applicable to the said lands and others, and the costs of all proper repairs. (3) That the said James Stewart and his foresaids shall pay and liquidate from time to time, or any time they consider proper, the said debts, principal, interest, and penalties, to the said Peter Geekie, and that either from the proceeds of sales of the lands and others, or of parts thereof, or from accumulations of rents or otherwise. (4) That the said James Stewart and his foresaids shall pay and defray the costs of and attending his management, and of all sales and loans to be made or carried through, and generally all other costs, disbursements, and expenses incurred or to be incurred by the said James Stewart or his foresaids in or connected with or arising out of these presents, or the management of the said lands and others, in any way.”

It was declared that James Stewart should be entitled to charge a commission on his management as if he were factor for the properties; and the fifth purpose of the trust is expressed in the deed in these terms, viz.,—“That the said James Stewart and his foresaids shall account to us for all residue in the premises, or denude on the foresaid several purposes being satisfied, with power to the said James Stewart and his foresaids to enter into possession of the lands and others above disponed, and to sue for, uplift, recover, receive, and discharge the rents, interests, and profits of the lands; with power also to grant leases of any parts or portions of the subjects, and that either by public roup or private bargain, for any period not exceeding nineteen years, and to output and input tenants, occupiers, and possessors at pleasure, with power also to enter into submissions and arbitrations, to compound and transact, to make compromises, to borrow money, and grant all necessary deeds and securities therefor, to alter or change securities, and to do all other things in and concerning the premises necessary or expedient, or appearing to the said-James Stewart or his foresaids at the time to be so.”

Mr James Stewart entered upon the management of the subjects, and continued in the management till his death on 19th April 1871. The trust then devolved on his eldest son James Arnott Stewart, who on the 20th July 1871 was decerned heir in special in the subjects, but in trust only.

Mr J. A. Stewart proceeded to advertise the subjects to be sold by public roup on the 22d September 1871, at the upset price of £3500.

On the 21st September 1871 Mrs Macdonald and her husband presented a note of suspension and interdict against the sale, on the ground that the conveyance in trust to Mr Stewart contained no power of sale. They alleged, moreover, that the upset price was greatly below the true value of the property, of which the rental was above £300 a-year, and that Mr Stewart had never rendered any account of his intromissions.

Answers were lodged for Mr Stewart's testamentary trustees, and for Mr James A. Stewart, in which it was averred that there was a balance due out of the trust-estate to the trustee of above £900; and that the person to whom Geekie had assigned his security was threatening to bring the property to a sale.

The Lord Ordinary on the Bills ( Benholme), in respect that the note was offered without caution, refused the note.

The complainers reclaimed.

Scott and J. P. B. Robertson for them.

Shand and Balfour for the respondent.

Authorities— Innes, Dec. 18, 1828, 7 S. 206; Erskine's Trs., May 13, 1829, 7 S. 594; Campbell's Trs., Dec. 4, 1838, 1 D. 153; Henderson, June 22, 1841, 3 D. 1049; Graham, Dec. 21, 1850, 13 D. 420, 427; Bell's Prin, 1998.

At advising (October 31)—