Scottish Court of Session Decisions

William Roy, grocer and feuar at Garelochhead, in the county of Dumbarton, died in February 1877. He was at the time of his death proprietor of certain heritable subjects situated at Garelochhead known as Victory House, Cairphilly House, and Lilybank Cottage. He left a disposition and settlement dated in June 1876, by the first purpose of which he conveyed to his daughter-in-law Joanna Murray or Roy, wife of his son William Roy, one of the defenders of this action, that portion of his heritable estate known as Cairphilly House and offices, with furniture, plate, &c., therein, in liferent, with the fee to their

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children. Lilybank House he conveyed in like manner to another married daughter and her children. To his widow he conveyed Victory House, with furniture, &c., in fee, binding his other disponees to free and relieve her of any burdens that might affect it at the time of his death, in order that she might obtain the same disencumbered of debt. He also left to her a policy of insurance on his own life and the residue of his estate, heritable and moveable, real and personal, but excluding the jus mariti, courtesy, right of administration, and every other right of the husbands of her and of his other female disponees. He further appointed her his sole executrix as regarded both heritable and moveable estate, with power to make up titles thereto and to convey to the disponees named in his settlement, for which purpose his disposition and settlement was to be held to be a disposition to her of all his means and estate, heritable and moveable, in trust, with which object she was to have all the powers and privileges conferred on gratuitous trustees. After his death his widow made up a title by notarial instrument to the whole heritable subjects as general disponee in trust.

At the time of Roy's death the heritable subjects above mentioned were burdened with two bonds, both dated 11th and recorded 21st May 1862, each for the sum of £450, one in favour of Alexander Brownlie, baker in Pollok-shaws, and the other in favour of his son William Roy, each of which contained a disposition in security of the said subjects to the respective lenders. The former of these two bonds, after some intermediate transmissions, was finally acquired by assignation from the last previous holder by the pursuer in the present action, James Glen, solicitor in Greenock.

In the beginning of 1881 Victoria House was burned down. It had been insured with its contents for £450, and the policy had been conveyed by the pursuer's author (by whom it had effected as heritable creditor primo loco) to the pursuer, who obtained £313 in respect of the loss.

In 1881 Mrs Morrison, another daughter of the deceased, who was not mentioned in the settlement, attempted to reduce it by action in the Sheriff Court at Dumbarton, in which she was unsuccessful. To this action William Roy junior was a party. In the course of the same year the pursuer and Mrs Roy, the executrix, had obtained in the Court of Session, against William Roy, a decree of declarator and removal from Cairphilly House, which he was then occupying, as after mentioned. Glen then raised the present action of maills and duties in the Sheriff Court against Mrs Roy, the widow of the deceased William Roy, as general disponee and proprietrix in trust of the said subjects, and against William Roy junior and other three defenders, as tenants or occupants of the subjects conveyed in the bond and disposition in security to which he had acquired right, concluding against the defenders, other than the widow, for certain sums in name of rent and arrears of rent. In particular, William Roy was sued as tenant or occupant of Cairphilly House. Pursuer alleged that no interest had been paid on the bond since Martinmas 1880.

William Roy alone defended the action.

Before the record was closed the pursuer had acquired an ex facie valid title to the second bond above mentioned—that in favour of the defender—in the manner narrated in the Sheriff-Substitute's note.

The defence was that the defender was not then, nor ever had been, tenant of Cairphilly House, and therefore was not liable in this action at the instance of a heritable creditor. He pleaded, inter alia—“(4) In any view, the pursuer is bound to apply the sum recovered from the insurance company in extinction, primo loco, of the said bond, whereby the same is extinguished or at least reduced pro tanto.”

Proof was led before the Sheriff-Substitute ( Gebbie), at which the pursuer produced a letter written by the defender to his father from Old Calabar, where he was then engaged in business, on 3d January 1876, in which he said—“As it is impossible to say when I will be home, I think it better to let our house in Glasgow, providing you can let us Cairphilly for this year. You can arrange with Joan [defender's wife] about the rent, but I think you offered it to us before for £30.” The pursuer maintained that the defender had occupied Cairphilly House in terms of an arrangement following this letter down to the date of the action of removal above mentioned, but had never paid any rent either to him or to the executrix. In his own evidence the defender stated that for about twenty years previous to 1876 he had been in Africa in the course of his business, but during that time had been coming and going between there and this country. While there he began about 1861 to make pecuniary advances to his father, which he continued to do for several years, to the amount altogether of about £1150. He produced several receipts and vouchers for sums so advanced, and stated that he had never received repayment beyond £60. It was in consequence of these advances that his father had granted him the second of the two bonds for £450 above mentioned. These advances were merely out of generosity on his part, and not in fulfilment of any legal obligation. “My family went down to Cairphilly House, and occupied it about 1875. … I had occupied Cairphilly House, or some of the other houses belonging to my father, previously for some years from time to time, but I was never in the proper sense a tenant. I went down to this house from my relationship to my father, and as having a right, having made the advances I have already stated. My father has asked me to go and occupy any of the houses whenever I pleased, when these houses were unlet, and I have done so, and paid him more or less for the time that I did so, but that was to assist him. It was a matter of family dealings, and no receipts were given or anything of the sort. There was no fixed rent agreed upon for Cairphilly House. … There was never any real intention between my father and me to pay rent, and I am due no rent for Cairphilly House. The possession since my father's death has been under his will. I had an unoccupied house in Glasgow, and I could have occupied it if I had desired, and would have done so if I had thought rent was to be charged.” In reference to the letter of 3d January 1876 his explanation was that he wrote that merely as a blind to please “old Mrs Roy and my father. It was to shut the mouth of old Mrs Roy gossipping, as I knew

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she was doing so.” He was a party to the case of Morrison v. Roy, in reference to which the following passage occurred in his evidence:—“(Q) When you were examined as a witness in the case of Morrison v. Roy, did you make a statement to the following effect:—‘Myself and family from time to time have occupied one of these houses, and I paid rent to my father for my own house’?—(A) If it is there, I must have said it. I gave him a sum of money, and that is what is meant by that. (Q) Listen to this—‘I told my father before I went abroad that I would take possession of one of the houses, and pay him £25 sterling a-year, with half of the garden.’ Did you make that statement in your evidence in the case Morrison v. Roy?—(A) I may have done so; if it is there, I must have done so.”

At the proof parties consented to the process in Morrison v. Roy, then pending in the same Court, being produced and forming part of the process in this action.

The Sheriff-Substitute ( Gebbie) pronounced this interlocutor:—“Finds it proved that the pursuer is vested in a bond and disposition in security granted by the late William Roy senior for £450 sterling, on 19th May 1862, over certain subjects that belonged to him at Garelochhead which, along with the interest due thereon since the term of Martinmas 1880, is still due and unpaid; that William Roy, defender, has been tenant or occupant of Cairphilly House and pertinents, part of the subjects embraced in the said bond and disposition in security, since the term of Martinmas 1878, at the annual rent of £30 sterling;…. that none of the defenders called to the action, except William Roy, have appeared to defend the same: Finds in law that the pursuer, as heritable creditor foresaid, is entitled to decree of maills and duties, and warrant to arrest, poind, and distrain as concluded for: Therefore repels the defences, decerns against the defenders, and grants warrant—all as prayed for: Finds Mrs Helen Leitch or Roy, principal debtor, liable in the expense of raising and bringing the action into Court: And finds the defender William Roy liable in the expenses occasioned by his appearance and opposition therein.

“ Note.—Ex facie of his title the pursuer is a heritable creditor possessing a valid right to the subjects in question, and it can scarcely be questioned that one in his position is entitled to sue such an action as the present. It requires an effort to suppose that the defender who has appeared could seriously believe that any of the defences he has proposed would likely prove in any degree successful. Vague and shadowy statements of his having made advances to his father about twenty years ago, in proof of which not a single regular document of debt has been produced, unless it be a bond and disposition in his favour to be afterwards noticed, can avail nothing as against the pursuer, who is clothed with a regular and valid title, unchallenged and unreduced. If the defences have been rightly appreciated, they seem to resolve into the following—that he was not a tenant; that his possession was attributable to his father's deed of settlement, which gave the liferent of Cairphilly House and pertinents to his wife, and the fee to his children.

The matter of tenancy in its inception appears at least to be put beyond all doubt, for there is a letter, dated 3d January 1876, by the defender himself to his father, in which he offers to take the house for £30. Following upon this his wife and family entered into possession, and have continued to occupy it ever since, and no receipt for payment of rent has been produced for the period embraced in the action. Then valuation returns from 1877 to 1881 are produced corroborative of the same fact, one of which is written by the defender's father, and at least one written by the defender himself. Beyond all this a decree of removing was in February last obtained against him in the Supreme Court.

As regards the title of possession claimed under the father's deed of settlement, it is to be observed that while the deed confers a right of liferent upon the defender's wife, and of fee in his children, that is subject to payment of the granter's debts, of which the bond and disposition in security vested in the pursuer forms one. The deed further, by a general clause, constitutes the granter's widow, one of the defenders, who is also his executrix, general disponee in trust, and she has made up a title to the subjects in that character. The debts, so far as can be judged, unhappily far exceed the value of the estate. In these circumstances it is felt to be impossible to give any effect whatever to the defences in so far as they can be said to have any relevancy.

It may be as well to notice the defender's fourth plea, which refers to the sum recovered under a policy of insurance effected over Victory House, which was destroyed by fire, and the contention is that it should be applied in extinction pro tanto of the pursuer's bond. The pursuer, who has other claims constituted against the estate beyond the bond founded on, has, with consent of the executrix, applied the sum to another purpose. There are two conclusive answers to that contention. One is, that a creditor is entitled to apply such funds as he may recover to payment of the debt least secured; and the other is, that it is jus tertii to the defender, seeing that old Mr Roy by his deed of settlement conveyed Victory House to his widow free of debt.

Another matter which came out in the evidence, although it was not mentioned in the record, may be referred to. It appears that old Mr Roy on the same day, though subsequent to the bond before mentioned, granted a second bond for the like sum of £450 in favour of his son, the defender. It is stated that the defender was sequestrated on 15th August 1876, and discharged without composition on 10th June 1878. This second bond, it would appear from the defender's evidence, was not given up specially as an asset to his trustee, and could not well be, as he does not seem to have become aware of its existence until quite recently. The pursuer has made up an ex facie valid title to this bond, which was sold on 8th December 1881 for £375 by public roup in Glasgow by the trustee and commissioners on the defender's sequestrated estate. On the other hand, the defender alleges he was reinvested in all outstanding debts and claims belonging to his estate by virtue of an assignation in his favour granted by his said trustee and commissioners, a copy of which only is produced, and which bears to be in consideration of the sum of £35, and is dated 12th and 13th April 1881. From the terms of the assignation (if a copy can be looked at) it

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is perhaps more than doubtful if it carried any right to the second bond. Besides, the defender says he has assigned his interest, and his assignee is not a party to this process. It is thus difficult to see what benefit the defender can take from a right which he has assigned. Plainly, if a competition is to arise between the two rights it must be determined in some other process than the present. The most conclusive answer, however, to the whole of this matter probably is that it is not pleaded on the record.

The authorities cited by the pursuer were Cockburn v. Young, 1674, M. 11,624, and Blair v. Galloway and Others, December 21, 1853, 16 D. 291.”

William Roy appealed to the Sheriff ( Gloag), who adhered, finding him liable in additional expenses.

He added this note:—“The Sheriff cannot feel certain that he has fully appreciated the defence in this somewhat confused case. He has, however, carefully considered the argument addressed to him with the record, and he has since examined the proof, a considerable part of which he must regard as irrelevant, and the extremely voluminous documents, the precise application of which to the defence was not pointed out; neither could he clearly understand on what precise documents the defender mainly relied. He has not, however, been satisfied that the Sheriff-Substitute's judgment is in any respect erroneous, and in adhering to it he considers it unnecessary to explain his views at any length.

To this action by a bondholder to enforce his apparent rights under his bond there seems to be, and apparently there can be, only two relevant defences—(1st) that the money is not due to the bondholder, and (2d) that the alleged rents are not due by the tenants. The evidence as to the alleged transactions and relations between the defender and his father have no bearing at all on the first question, and no direct bearing on the second. The bond would be due not the less whatever the defender's claims against his father or his estate may be. On this point it seems unnecessary to say more than that while the sum in the bond is prima facie due to the pursuer, it is not, in the Sheriff's opinion, established that he was bound to impute to it either the sum obtained on the policy of assurance over Victory House, or any other payment which has been made out.

The second question seems the more difficult, but it appears to be the fair result of the whole evidence that the defender's occupation of Cairphilly House began on the footing of tenancy, and on the understanding that a rent of £30 was paid; that since old Mr Roy's death the defender's wife has never received or accepted possession as the liferentrix; that Cairphilly House must be held as still occupied by the defender, and that not in right of his wife, nor on account of her right, but in unbroken continuance of his previous occupation, and on the old footing; and lastly, that £30 is a fair rent, that that was the rent agreed to at first, and that that agreement was never altered.

These views seem sufficient for the disposal of the case without adverting to any of the other points referred to. The fact that the defender's wife is under old Roy's settlement liferentrix of the estate does create a puzzle, but does not, it is thought, in the highly special circumstances afford a sufficient defence.”

William Roy appealed to the Court of Session, and argued—Whatever the pursuer's rights against him might be, they were not for rent, for during the old man's lifetime he was a gratuitous occupant only, under no obligation to pay rent, and after his death his possession was his wife's as liferentrix under the will— Brown v. Scott, December 21, 1859, 22 D. 273.

The pursuer replied—By his own writ and out of his own mouth the appellant was tenant under an engagement to pay rent during the old man's lifetime, and the character of his possession was not changed after his death, for his wife and himself had repudiated the settlement, and could not now found on it to explain their possession as other than that of tenants— Macbrair v. Rome, M. 5246.

At advising—