Scottish Court of Session Decisions

This was a petition for recal of inhibitions used against the petitioner by the respondents.

By bond and disposition in security, dated and recorded 13th and 14th October 1876, David Wilkie Clarke, the petitioner, and David Crabb, as trustees and also as individuals, borrowed from the respondents Mrs Jane Jack or M'Nab, Martha M'Nab, and John M'Nab, £1600, and from the respondent James Cuthbert £400, which two sums they bound themselves to repay to the respondents and their assignees, both as trustees for the said Mrs Jane Jack or M'Nab, Martha M'Nab, and John M'Nab, and James Cuthbert, and as individuals, as the lenders of the said sums. In security the borrowers, as trustees for themselves and as individuals, disponed to the respondents certain heritable subjects in Dundee.

On 13th November 1877, Mrs Margaret Scott or Bell acquired right to the bond and disposition in security, and lands and others thereby disponed, and the sums of money thereby due, conform to assignations in her favour by James Cuthbert, and by Mrs Jane M'Nab, Martha M'Nab, and John M'Nab.

Page: 390↓

By a corroborative disposition in security, dated 19th March 1883, the borrowers, under arrangement between them and Mrs Bell, disponed to the respondents, and the survivors and last survivor, as trustees, in manner above mentioned, for behoof of Margaret Scott or Bell, the party in right of the beneficial interest in the bond and disposition in security, lands, and sums of money therein contained, the heritable property therein specified, and that in real security to the respondents, as trustees, and for behoof foresaid, of the foresaid sum of £2000, with the interest thereof, and penalties before specified in case of failure if incurred.

The respondents, as trustees under the said bond and disposition in security, on 17th January 1888 raised letters of inhibition whereby the petitioner was inhibited, as a trustee and as an individual, from selling or burdening his heritage to the prejudice of the respondents anent the security and payment to them of the sum of £2000, and on 26th January 1888 the petitioner was again inhibited to the same effect.

David Wilkie Clarke presented this petition for recal of these inhibitions, and averred that at the date of the inhibitions the respondents other than Mrs Margaret Scott or Bell possessed no right, title, or interest in or to the bond and disposition in security, the sums due thereunder, or the properties thereby conveyed; the true creditor under the bond and disposition in security was the respondent Mrs Margaret Scott or Bell, and the letters of inhibition were taken, and the inhibitions used, without her knowledge or consent, and contrary to her wishes; the inhibitions were therefore inept and illegal, and proceeded at the instance of persons who had no right, title, or interest to recover the sums above mentioned from the petitioner, or to grant a discharge therefor upon payment.

The respondents, including Mrs Bell, lodged answers. They averred — “The respondents other than the said Margaret Scott or Bell continued to hold in trust the right to the said bond and disposition in security, and the personal obligation of repayment of the loan therein contained. The respondent Mrs Margaret Scott or Bell has never acquired any right to demand repayment of the said loan, and she has no title to do so except through the intervention of the other respondents as trustees holding for her behoof.… Mrs Margaret Scott or Bell is an infirm old lady, and her affairs are managed by Mr Cumming, solicitor, Bank Street, Dundee. Mr Cumming has her general authority to act in her interests as he thinks proper. The petitioner called upon the respondents, Mrs M'Nab and Mrs Margaret Scott or Bell, and endeavoured to persuade these ladies not to call up the loan. The respondent Mrs Margaret Scott or Bell referred him to her law agent Mr Cumming, to whom she on 7th January 1888 sent a letter in the following terms:—‘Mr Clarke called upon me on Wednesday, and I just told him you were my man of business, and referred him to you. I quite approve of what you are doing in calling up the money.’”

Argued for the petitioner—(1) The letters of inhibition were invalid from misdescription. They were raised at the instance of the respondents as trustees under the bond and disposition in security. These parties were designed trustees, but they were in fact the creditors in the advances made. They had assigned their whole beneficial right and title to Mrs Bell, and they now held as trustees for her, and no longer for themselves. It was therefore fatal to their diligence that it was raised by the respondents as trustees for themselves— Walker v. Hunter, Dec. 15, 1853, 16 D. 226. (2) Mrs Bell, the true beneficiary, was not alleged to have given authority for the diligence.

Argued for the respondents—In the first place, there was no misdescription in designing the respondents as trustees under the bond and disposition in security. They acted under it, although it was true that the money due was not now payable to them but to Mrs Bell. There was no doubt that the debtor was answering to the right person in answering to the trustees. In the second place, it was sufficient that Mrs Bell was represented by counsel.

At advising—