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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cadell, Petitioner [1897] ScotLR 34_640 (25 May 1897)
URL: http://www.bailii.org/scot/cases/ScotCS/1897/34SLR0640.html
Cite as: [1897] ScotLR 34_640, [1897] SLR 34_640
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SCOTTISH_SLR_Court_of_Session
Page: 640↓
Court of Session Outer House.
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Facts:
Section 8 of the Entail Amendment (Scotland) Act 1875 provides—“It shall be lawful for an heir of entail in possession of an entailed estate in Scotland holden by virtue of any tailzie dated prior to 1st August 1848 (notwithstanding any provision to the contrary contained in the tailzie), who has obtained the authority of the Court to borrow money under this Act on the security of the estate, to charge the fee and rents of such estate other than the mansion-house, offices, and policies thereof, or the fee and rents of any portion of such estate other than as aforesaid, with a bond of annual-rent binding himself and his heirs of tailzie to make payment of an annual-rent for twenty-five years from and after the date of such authority of the Court, such annual-rent to be payable by equal moieties half yearly, and to be at a rate not exceeding seven pounds two shillings per annum for every one hundred pounds so authorised to be borrowed, and so in proportion for any greater or lesser sum.”
An heir of entail who had obtained authority to charge the estate with a certain amount, executed a bond of annual-rent for £7, 2s. for each £100 of the amount so authorised. For this bond he received a loan in excess of the amount authorised to be charged. Held that this was a competent method of exercising the powers conferred by the section quoted above.
James John Cadell, heir of entail in possession of the estate of Barnton in the county of Stirling, presented a petition for authority to charge money expended in improvements against the estate, in the manner provided by section 8 of the Entail Amendment (Scotland) Act 1875 (quoted in rubric), and obtained by interlocutor dated
Page: 641↓
20th March 1897 authority to charge the said estate with a sum expended by him in the improvement of the estate, which together with the expenses of the application for authority to charge, amounted to £3785. The interlocutor, after a finding that the sum in question was bona fide expended by the petitioner in the improvement of the estate, proceeded as follows—“Grants warrant to and authorises the petitioner to execute at the sight of C. S. Rankine Simson, W.S., in favour of himself or of any person or persons he may think fit, or of any person or persons who may advance the money, a bond or bonds of annual-rent in ordinary form over the said entailed estate or any part or parts thereof other than the mansion-house, offices, and policies thereof, binding himself and his heirs of tailzie to make payment of an annual-rent during the period of twenty-five years from and after the date of this decree, or during such part of the said period of twenty-five years as shall remain unexpired at the date or dates of said bond or bonds, such annual-rent not exceeding the sum £7, 2s. for every £100 of the said sum of £3785.” Mr Cadell exercised the power thus conferred to the extent of £3000 by granting a bond of annual-rent in favour of the Edinburgh Life Assurance Company for £213 (being at the rate of £7, 2s. per cent On £3000). For this bond he received from the company the sum of £3136, 5s. 9d.
Mr Rankine Simson in presenting his report on the bond, called the attention of the Lord Ordinary to the fact that the amount received by the petitioner was thus in excess of the capital amount he was authorised to charge, and pointed out that the sum of £3000 could have been obtained for an annual-rent of £186.
The Lord Ordinary approved of the bond.
Counsel for the Petitioner— F. M. Anderson. Agents— Mackenzie & Kermack, W.S.