Scottish Court of Session Decisions

In July 1888 A. W. Gordon, judicial factor on heritable subjects in Redford's Land, St Andrew's Street, Leith, which had belonged to John Young and David Young, woollen manufacturers in Leeds, raised this action against the testamentary trustees of the deceased John Williams, in which he sought to have the defenders ordained (1) to produce a full account of the intromissions had by John Williams and themselves with the rents of the heritable subjects on which the pursuer had been appointed judicial factor; and (2) to pay over to the pursuer the balance which should be found due.

The petition under which the pursuer was appointed judicial factor on the heritable subjects above mentioned was at the instance of Mrs Ellen Waite, and set out that—“The petitioner is one of the next-of-kin of the said John and David Young, and until it has been ascertained who is their heir-at-law, desires that a judicial factor be appointed on the said property, with power to recover the rents and arrears of rent thereof, and to preserve the subjects from dilapidation.” The petition prayed that Mr Gordon should be appointed judicial factor “with all the usual powers, and in particular, with power to sue for and receive the arrears of rents due from said subjects.” The extract decree of his appointment bore that he had been appointed “to be judicial factor with all the usual powers.”

The subjects in question consisted of four small houses in the tenement known as Redford's Land, the rest of which had been purchased by Mr Williams in January 1862.

The pursuer averred—“On his appointment as judicial factor foresaid, the pursuer made the necessary inquiries as to the position of the estate under his charge, and ascertained that the defenders were in the possession of the said heritable subjects, were drawing the rents thereof and acting as proprietors therein; and farther, that their author and predecessor, Williams, had been also in possession thereof since the term of Martinmas 1861.… Neither the said John Williams nor the defenders have ever accounted for their intromissions with the said rents, although the defenders have recently admitted their liability to account therefor.… The defenders are bound to account to the pursuer for the said rents for the period mentioned, subject to annual feu-duty, taxes, and repairs, as the same may be vouched or instructed.”

The defenders in answer admitted that the defenders and their author Mr Williams have collected the rents of the said dwelling-houses since Martinmas 1861, and that they are bound to account for their and his intromissions since said term to the party in right of the subjects.

In a statement of facts they further averred that it had been absolutely necessary for Mr Williams, in order to protect his own interests, (the Messrs Young by their neglect having practically abandoned the subjects), to take control of the tenement, which he accordingly had done.

The defenders pleaded—(1) “No title to sue.”

On 21st June 1889 the Lord Ordinary ( Wellwood) repelled the 1st plea-in-law for the defenders, and ordained them to lodge accounts of their intromissions within ten days.

“ Opinion.—The defenders' plea to title is rested on the ground that the pursuer has no title to sue for arrears of rent which were paid before his appointment to the defenders. In the circumstances I think the plea is ill founded. The authorites relied on by the defenders— Swinton v. Gawler, June 20, 1809, F.C.; M'Gregor v. Beith, 6 Sh. 853—were

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cases in which the rents had been paid before the factor's appointment to persons who had a colourable title to receive them, e.g., as heir or executor. Here, while the defenders and their author may have acted excusably in collecting the rents, they had no colourable title. They really acted as self-appointed factors loco absentis, and were therefore bound to account to the pursuer on his appointment for their intromissions, deducting, it may be, sums bona fide expended on repairs, taxes, &c.”

The defenders reclaimed, and argued—The factor had no title to sue parties who had intromitted with the rents before his appointment. He was appointed merely to preserve the property till the person in right thereof came forward— M'Gregor v. Beith, May 24, 1828, 6 Sh. 853.

The pursuer and respondent argued — The judicial factor had the right to receive and keep the sums due by the defenders for the persons entitled thereto—Thoms (2nd ed.), 13, 67; Stair iv. 50, 27. The Lord Ordinary had made the proper observations on both the cases quoted in this note. In M'Gregor's case the estate had been sequestrated. The factor there was a factor with a limited power on a sequestrated estate. Here he was a factor loco absentis appointed for the purpose of getting at these rents. It was not for the defender to say that he ran any risk, for the heir was here, and willing to concur with the factor in granting a discharge. .

At advising—