Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0653.html
Cite as: [1887] ScotLR 24_653, [1887] SLR 24_653

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SCOTTISH_SLR_Court_of_Session

Page: 653↓

Court of Session Inner House First Division.

Saturday, July 9 1887.

[ Lord Trayner, Bill Chamber.

24 SLR 653

M'Whirter

v.

Rankin and Others (M'Culloch's Trustees).

Subject_1Right in Security
Subject_2Bond and Disposition in Security
Subject_3Personal Obligation
Subject_4Titles to Land Consolidation (Scotland) Act 1868 (31 and 32 Vict. c. 101), sec. 119, Sched. F F (No. 1).
Facts:

The creditor in a bond and disposition in security in the form prescribed by the Titles to Land Consolidation (Scotland) Act 1868, Sched. F F, No. 1, containing the usual clause consenting to registration for execution, gave notice requiring payment of the sum contained in the bond, with the usual three months' premonition that failing payment he might proceed to sell. Shortly thereafter the creditor charged the debtor on the personal obligation in the bond to make payment within six days. The debtor having brought a suspension of the charge— held that the creditor was entitled to both remedies, and note refused.

Headnote:

By bond and disposition in security, dated 16th and recorded 17th February 1881, Robert M'Whirter borrowed £1000 from the Rev. J. M. M'Culloeh over certain subjects in Greenock. The bond was in the form prescribed by the Titles to Land Consolidation Act 1868, Schedule F F, No. 1, and contained a clause consenting to registration for execution.

On 27th May 1887, Dr M'Culloch having in the interval died, his trustees gave notice requiring payment of the £1000 within the three months provided by the 119th section of the Titles to Land Consolidation (Scotland) Act 1868. On 16th June 1887, and prior to the expiry of the three months, the trustees charged M'Whirter, upon the personal obligation contained in the bond, to pay within six days thereafter the said principal sum of £1000, penalty and interest. M'Whirter brought a suspension of the charge, and pleaded, inter alia—“(3) The said charge is at variance with the terms of the schedule previously served on the complainer by the respondent, in virtue of the statute, and also at variance with the provisions of the statute itself.” The respondents stated that there had been delay in paying the interest on the bond, and that they had discovered that the value of the security had greatly depreciated.

The Lord Ordinary ( Trayner) on 25th June 1887 refused the note.

“ Opinion.—… The clauses of the Act referred to make provision for the proceedings which must be taken before the creditor in a heritable security takes steps to realise the subject of the security. But these clauses have no application in the present case, because the creditor is not proposing to sell the security subjects, but is proceeding only to recover his debt by diligence on the personal obligation of the suspender. This appears to me to be within the right of the respondent, and is a right, in my opinion, distinctly recognised by the effect given by statute to the clause in the bond consenting to registration for execution.”…

Page: 654↓

The complainer reclaimed.

At advising—

Judgment:

Lord President—This case is too clear for argument. Section 119 of the Titles to Laud Consolidation Act 1868, which has been appealed to, has really nothing to do with the question. Where the subject of the security is to be realised the provisions of that section are to be followed, and the sale may take place upon three months' premonition. But there is no proposal to sell in the present case. The only matter before us is the ordinary charge upon a personal bond, which, the suspender says, should not be allowed to proceed because the three months have not expired. But this bond gives two remedies—the first is that of charging upon the personal obligation; the second is that of calling up the bond, and failing payment within three months, of proceeding to a sale of the security subjects. It cannot be doubted that the respondents were entitled to both remedies.

Lord Mure, Lord Shand, and Lord Adam concurred.

The Court adhered.

Counsel:

Counsel for the Complainer and Reclaimer— M'Kechnie—Forsyth. Agent— Robert Emslie, S.S.C.

Counsel for the Respondents— Graham Murray—M'Clure. Agents— Smith & Mason, S.S.C.
1887