Scottish Court of Session Decisions

A petition was presented by Mr Alexander Logan, administrator-in-law to Oliver Purves Logan, his pupil son, craving the Court for authority to sell the main-door dwelling-house and area flats No. 17 Union Street, Edinburgh, to which the pupil had succeeded as heir-at-law to his uncles John Hendrie and W. N. Hendrie, tobacconists, Edinburgh. The Court remitted to Mr Dangerfield, S.S.C., to inquire into the facts and circumstances set forth in the petition, and to state his opinion as to the value of the subjects, &c. Mr A. O. Mackenzie, advocate, was appointed curator ad litem to the pupil, and stated no objections to the remit.

The following extracts from Mr Dangerfield's report sufficiently indicate the circumstances giving rise to the petition:—“The said property is burdened with a

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heritable bond of £600 granted by the now deceased James Hendrie, tobacconist, No. 4 Catherine Street, Edinburgh, father of the said John Hendrie and W. N. Hendrie, in favour of John Latta, residing at No. 11 Calton Street, Edinburgh, dated 15th May and recorded in the Division of the General Register of Sasines applicable to the county of Edinburgh 29th August 1878. The sum at present due under this bond, including interest, feu-duty, and expenses is £687, 2s. 1d. The said John Hendrie acquired the said subjects in 1893 under burden of the said bond, and died on 10th May 1897 survived by the said W. N. Hendrie, his heir-at-law, who died a week or so later. The said John Hendrie died insolvent, and the amount of his unsecured liabilities is £1072, 5s., while his free moveable estate is only sufficient to pay about 16s. per £ on this sum. Any surplus from the said heritable estate will thus fall to be divided between the unsecured creditors. The said Oliver Purves Logan and his sister and heir-at-law Mary Elizabeth Logan are also two of the next-of-kin of the said James Hendrie, who died on 12th April 1897 leaving moveable estate to the value of £24, 3s. 11d. of this sum one-sixth or £4, Os. 8d. falls to the said Oliver Purves Logan. The said James Hendrie was personally liable for the said bond of £600, and if the said heritable subjects are insufficient to meet the burdens upon them, the said James Hendrie's estate will have to be applied in making up the deficiency. The petitioner sets forth that the said property has been valued by Messrs James Galloway & Sons of Leith at £750, and Messrs Stevenson & M'Lean, Leith, at £700. The total rental of the property, of which the principal part, viz., the main-door house, is at present unlet, is £54, and the feu-duty £9, 10s., with a casualty of a year's rent falling due in 1900. Your reporter has carefully considered these valuations and other information supplied to him by the petitioner, and is humbly of opinion that the value of the said subjects does not exceed £700 sterling, being the sum which Messrs Stevenson & M'Lean state in their valuation ‘would be the utmost got for it.’ This being so, it appears to your reporter that not only will there be no surplus over after paying off the bond and expenses, to divide among the unsecured creditors of the said deceased John Hendrie, but that in all probability the moveable estate of the said deceased James Hendrie will be consumed in making good any deficiency, leaving no surplus of any kind for the said Oliver Purves Logan. In these circumstances it humbly appears to your reporter that the persons who have the real interest in the sale of the said subjects are the bondholders and the unsecured creditors of the said John Hendrie, and while your reporter has no doubt of the expediency of selling the said subjects in the manner proposed, he has considerable difficulty in stating to your Lordships that this is a case of such necessity or advantage to the pupil as would warrant your Lordships in granting the powers craved. … If your reporter's view of the value of the said subjects is correct, or even should they fetch the larger sum of £750 indicated by the petitioner, the pupil cannot in the present case derive any advantage from the proposed sale, or in the best view for him his interest seems only to be the foresaid sum of £4, 0s. 8d. While therefore your reporter has no doubt whatever upon the expediency of carrying through the sale in the method proposed, as it would probably save expense to the bondholders and to the unsecured creditors on the said deceased John Hendrie's estate, he has thought it right to bring before your Lordships the doubts which have arisen in his mind regarding the necessity of the application or the advantage to the pupil of granting the powers craved.”

As illustrating the principles on which the Court would grant authority the reporter referred to the cases of Lord Clinton, October 30, 1875, 3 R. 62; Colt v. Colt and Others, November 6, 1800, M. 16, 386; Campbell, June 26, 1880, 7 R. 1032.

Argued for petitioner—If authority for the sale were not granted the creditor would adjudicate. Accordingly there was “necessity” for selling the estate in order to pay the debts in the cheapest possible way. The Court would consider whether there was necessity for or high expediency in the course proposed, rather than whether it would result in advantage to the pupil's estate— Lord Clinton (supra); Mackenzie, January 27, 1855, 17 D. 314.