Scottish Court of Session Decisions

Lord Justice-Clerk—This is a question depending on the discretion of the Court, in the special circumstances of the case. They are very special. I am far from saying that in the general case a judgment of this Court is not to receive effect until the two years, within which an appeal to the House of Lords may be presented, have expired. The reverse certainly may be safely assumed, but in this case Dr Traill, after selling his property to the defender, and obliging himself to grant a valid title at the time of entry, found himself unable, from embarrassments created by himself, to fulfil his obligation, and was obliged to bring an action to reduce an alleged incumbrance affecting the property sold. The purchaser, at the seller's desire, took and retained possession, and the defender obtained a decree of this Court in June 1876. It was a very difficult and complicated case, and the Court had considerable doubt in regard to it. The judgment will be final in June 1878, and the question is, whether during the interval the pursuer can require payment of the price. This I think he is not justified in doing without protecting the defender from the risk of a reversal. It seems clear enough that any title he can give, being in truth not only doubtful but litigious, would not be readily available in the market. He must find caution, and this will of course terminate when the two years have expired.

As to the question of interest, I think 4 per cent only should be charged, for the seller had not a complete or undoubted title to give.

Lord Ormidale—I am of the same opinion. The position of the parties is this:—Mrs Connon was all along in possession, for before she entered into possession as proprietrix she was the tenant. In consequence of the litigation here Dr Traill could not give a clear title, . which he had bound himself to do, but the question of title remained over until the judgment of the Court should be obtained. Mrs Connon all this time continued in possession, and enjoyed to a certain extent the benefit arising from the property. But still she could not have the full enjoyment while she was without a title; but as to this question I need say nothing, as I understand it has been agreed between the parties that interest at the rate of 4 per cent, should be charged for the time the defender has been in possession as proprietrix, and this, I think, is a favourable result for her.

The other question is attended with some difficulty. It seems to me to be a question for the discretion of the Court arising out of the particular circumstances. In this case, if an appeal had actually taken place, could it then be maintained that Mrs Connon, the purchaser, was bound to take the title offered to her? This could hardly be maintained, and yet the risk is the same in present circumstances as long as an appeal is open.

I can quite understand a case where it would be inconceivable that the judgment of this Court wiping off an incumbrance could be reversed, and where it would be absurd to ask the parties to guard against the chance of an appeal. In such a case this could only be pleaded for the purpose of gaining delay; but the Court would not listen to this.

The action which came before us in connection with the £1000 bond was a very difficult and nice case, and that being so I think there are reasonable grounds for apprehension, and therefore Mrs Connon may say-You must give me security. Supposing Mrs Connon had paid the price for the property, and got such a title as Dr Traill could have given her and had then wanted to sell, would any purchaser knowing the full state of the facts between the parties give her the same price as he otherwise would, or even become the purchaser at all? In the same way if she wished to borrow.

Taking all these tests into consideration, I am of opinion that Mrs Connon is quite reasonable in saying—I must have a guarantee against the risk of appeal. I think that Dr Traill must find caution.

Lord Gifford—I am of the same opinion. Whenever we reach the conclusion that this is a matter of discretion, I can have no doubt that there is here a doubtful title.

The pursuer's counsel asked that the case should be sisted till the period for appealing should expire, instead of the pursuer finding caution, which was agreed to.