Scottish Court of Session Decisions

This was an action at the instance of Catherine Thom, Mrs Thom or Annan, and her husband James Annan, all residing in Rothesay, against Daniel Macbeth, writer in Rothesay (both as trustee under a trust-disposition and settlement executed by the deceased Robert Thom of Ascog, cotton-spinner in Rothesay, father of the female pursuers, and as an individual), and also against the children of Mr and Mrs Annan, and certain other parties interested in the estate of the late Robert Thom.

The summons concluded for a sale of the estate of the deceased Robert Thom, or, in the event of its being found that a sale was inexpedient, then that the estate should be divided in certain proportions amongst the pursuers and the defender Daniel Macbeth, who was himself entitled to a certain share as pro indiviso proprietor, and also bound as trustee to hold certain shares for Miss Thom and Mrs Annan. Several parties at first appeared to oppose this action, but in the later stages of the case Mr Macbeth and his son Daniel Macbeth junior were the only defenders.

The defenders disputed the title of the pursuers to bring this action, and also maintained that in any view they were not entitled to insist upon a sale of the estate. On 5th December 1872 the Lord Ordinary ( Mackenzie) found for the pursuers upon the matter of title, and although a reclaiming note was presented by the defenders it was afterwards withdrawn. Accordingly the sole question came to be, whether, on the one hand, the pursuers were entitled to have the estate sold, or, on the other, the defender could insist upon a division.

A report was given in by Mr Hugh Kirkwood, to whom a remit had been made, in which he stated that in his opinion the estate was “incapable of division in the proportions referred to without great depreciation of value.” Afterwards, upon a second remit being made, he adhered to his original report. Mr Macbeth maintained that he was entitled to have a proof at large for the purpose of establishing the expediency of a sale; but this was refused by the Lord Ordinary on the ground that Mr Macbeth had acquiesced in the remit to Mr Kirkwood, and had taken part in the proceedings under that remit. The Lord Ordinary accordingly, on 9th June 1874, found that a sale of the estate was proper and necessary, and afterwards remitted to Mr W. S. Fraser, W.S. to prepare and lodge in process a draft of the articles and conditions of roup. As

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that gentleman reported that the whole of the estate was not included in the summons, a supplementary action was brought to which similar defences were lodged by the Messrs Macbeth. Lord Young, acting for Lord Mackenzie, conjoined the actions upon 19th May 1875, and afterwards, upon 7th July, issued an interlocutor finding that the subjects included in the supplementary action should also be sold. Against these interlocutors of Lords Mackenzie and Young, approving of a sale, the defenders reclaimed.

Argued for them—The defenders are entitled to insist upon a division in virtue of their rights as pro indiviso proprietors, assuming that the subject possessed is physically capable of division. They are not barred by the reports of Mr Kirkwood, as the remit to him was “before further answer,” and there was therefore a reservation of any objections on their part.

Argued for pursuers—The reports of Mr Kirkwood are conclusive upon the subject of the expediency of a sale, and the defenders cannot now object to them. A division cannot be insisted upon if it be prejudicial to the estate.

Authorities— Brock v. Hamilton, Jan. 27, 1852, reported as a note to Anderson v. Anderson, Mar. 17, 1857, 19 D. 701, Stair iv. 3, 12, Bell's Com. i. 62–3, Justinian's Institute, 6, 20; Bryden v. Qibson, Feb. 4, 1837, 15 S. 487; Craig v. Fleming, March 14, 1863, 1 Macph. 612; Dickson v. Monkland Canal Coy. H. L., June 29, 1825, 1 W. and S., 636; Wilson v. Struthers, Feb. 10, 1837, 15 S. 523.

At advising—