Scottish Court of Session Decisions

This was an action at the instance of Mrs Annie Grierson Lee or Roscoe and her husband Henry William Kent Roscoe against William Robert Mackersy, W.S., Edinburgh, to have the defender ordained to implement his part of the contract of sale of subjects in Montrose Terrace, Regent Road, Abbeyhill, as re-exposed by the pursuers on 20th April 1904, and purchased by the defender for £130, and further concluding for damages against the defender in the event of his failing within three weeks of decree to implement the said contract of sale. The subjects were sold by the pursuers in virtue of the powers of sale contained in a bond and disposition in security dated 11th June 1883 for £275 granted by William Smith, residing at 25 Montrose Terrace, Edinburgh, in favour of Mrs Roscoe. The first exposure was on 23rd March 1904 at the upset price of £180, and no one offering the upset price the subjects were re-exposed on 20th April 1904 at the reduced upset price of £130, and were bought at that price by the defender. The first advertisement of the exposure of the said subjects appeared on 10th February 1904. The minute of exposure was not signed by Mrs Roscoe herself, but by an agent authorised to act on her behalf. The articles of roup did not specify the bank in which the surplus price, if any, was to be consigned.

The pursuers pleaded, inter alia—“(1) A valid contract of sale of the said subjects having been constituted by the said articles of roup, minute of re-exposure, and minute of enactment and preference, and the defender having failed to fulfil the same, the pursuers are entitled to decree of implement as concluded for. (3) In the event of the defender's continued failure or refusal to implement the said contract of sale, the pursuers are entitled to reparation as concluded for in the alternative conclusion of the summons with expenses.”

The defender pleaded, inter alia—“(3) The title offered by the pursuers to the defender, not being a marketable one, the defender ought to be assoilzied from the conclusions of the summons with expenses.”

The Titles to Land Consolidation (Scotland) Act 1868 (31 and 32 Vict. c. 101), sec. 119, enacts, inter alia, that a heritable credi—tor may, on the expiration of three months after a demand for payment, sell the security-subjects “on previous advertisement … published once weekly for at least six weeks subsequent to the expiry of the said three months.”

Section 122 of the said Act enacts, inter alia, that the creditor shall upon receipt of the price consign the surplus which may remain after deducting the debt secured and expenses in a bank, “and the particular bank in which such consignation is to be made shall be specified in the articles of roup.”

On 10th November 1904 the Lord Ordinary ( Kyllachy) pronounced this interlocutor:—“Finds the objections stated by the defender to the title offered by the pursuers cannot be sustained: Therefore appoints the defender to implement and fulfil in all respects his part of the contract of sale of the subjects libelled, and that by accepting a valid disposition of the same in his favour containing all usual and necessary clauses executed by pursuers of said subjects; also to make payment to the pursuers of the sum of £130, the price of the same, with interest as concluded for, and that within three weeks of the date hereof: Finds the pursuer entitled to expenses,”&c.

Opinion.—“In this case the defender takes, I think, three objections to the title offered to him as purchaser of the property in question.

“His first objection is that there was no valid exposure, in respect that the minute of exposure was signed not by the creditor who was selling the property under the powers in his bond, but by the creditor's agent. As to that objection, there being no question of the agent's authority, I confess that it does not appear to me to be stateable.

“The second objection is, I think, on examination, also untenable. It is said that forty-two days had not elapsed between the date of the first advertisement and the sale. But the answer to that is that forty-two days had elapsed—that is to say, that there had been a full period of forty-two days between the morning of the day when the first advertisement appeared and the morning of the day when the sale took place. That, I think, amply satisfied the statutory requirement, that the prescribed advertisements should be inserted during a period of six weeks preceding the sale.

“That leaves only the third objection, which is founded on this, that the articles of roup did not contain a statement of the name of the bank in which the surplus price falling to the owner of the property was to be consigned in the event of the property realising a surplus over and above the exposer's debt. I have looked into this matter, which turns upon the terms of the 122nd section of the Act of 1868, and I am far from saying that if there had been here a surplus it might not have been possible for the defender to contend that the sale was subject to challenge by the owner of the property, in respect that there had not

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been the prescribed intimation to him of the bank where the surplus was to be consigned. But in the present case it seems enough to say that there has been in fact no surplus; that the sale was one in which no surplus could possibly arise; and that therefore the owner of the property could not under the 122nd section make any claim or raise any question. I have come therefore to the conclusion that this objection is also untenable. And I am further of opinion, having considered the question of expenses, that none of the defender's objections were substantial, and that therefore he must be found liable in expenses.”

On 3rd December 1904 the Lord Ordinary pronounced the following further interlocutor:—“The Lord Ordinary, in respect the defender has failed to implement the preceding interlocutor, Finds the pursuers entitled to damages: Of consent assesses the sum at £25, for which sum decerns against the defender as in full of the conclusions of the summons,” &c.

The defender reclaimed, and argued that he was not bound to implement the contract, in respect that the title offered to him was defective, first, because the period of six weeks, laid down by the Act of 1868, between the first advertisement and the first exposure had not elapsed— Ferguson v. Rodger, June 12, 1895, 22 R. 643, 32 S.L.R. 525; Titles to Land Consolidation Act 1868, sec. 119; Thomson v. Magistrates of Kirkcudbright, January 23, 1878, 5 R. 561, at p. 563, 15 S.L.R. 299; Ashley v. Magistrates of Rothesay, June 20, 1873, 11 Macph. 708, 10 S.L.R. 513; Wilson, December 1, 1891, 19 R. 219, 29 S.L.R. 176; Mackenzie v. Munro, November 10, 1894, 22 R. 45, 32 S.L.R. 43; Digest, 44, 7, 6; Nisbet v. Cairns, March 12, 1864, 2 Macph. 863; Lawford v Davies, February 19, 1878, 4 Prob. Div. 61—and secondly, that the bank in which consignation of surplus was to be made had not been specified in the articles of roup as required by the Act of 1868—Titles to Land Consolidation Act 1868, sec. 122. The objection taken in the Outer House that Mrs Roscoe had not herself signed the minute of exposure was not pressed. On the question of expenses the reclaimer argued that expenses should be allowed, as the title was one that required clearing— Howard & Wyndham v. Richmond's Trustees, June 20, 1890, 17 R. 990, 27 S.L.R. 800.

The arguments for the respondents sufficiently appear from the opinions of the Judges.