Scottish Court of Session Decisions

[The case is reported ante ut supra.]

The Heritable Securities (Scotland) Act 1894 (57 and 58 Vict. cap. 44) enacts—Section 5—“When a creditor desires to enter into possession of the lands disponed in security, and the proprietor thereof is in personal occupation of the same, or any part thereof, such proprietor shall be deemed to be an occupant without a title, and the creditor may take proceedings to eject him in all respects in the same way as if he were such occupant, provided that this section shall not apply in any case unless such proprietor has made default in the punctual payment of the interest due under the security, or in due payment of the principal after formal requisition.” Section 6—“Any creditor in possession of lands disponed in security may let such lands held in security, or part thereof, on lease, for a period not exceeding seven years in duration.”

Mrs Catherine A. Hugonin or Inglis, Alton House, Inverness, and Etienne Hugonin, solicitor, there (Mr and Mrs Inglis' marriage contract trustees), pursuers, brought an action in the Sheriff Court at Inverness against Mrs Rebecca Brown or Macpherson, widow of the late Donald Macpherson, teacher, Inverness, defenders. The prayer of the initial writ was—“To grant warrant summarily to eject the defender, her dependents and effects, in virtue of section 5 of the Heritable Securities (Scotland) Act 1894, from the portion of the security subjects comprehending the dwelling-house known as Hanover House, Ness Bank, Inverness, now occupied by her without title; and further to grant warrant to cite the defender on an induciæ of three days.”

The following narrative is taken from the opinion ( infra) of the Lord President — “In this appeal the pursuers are a set of trustees who are the undoubted holders of a bond and disposition in security; and the action is one in the Sheriff Court, in which they pray the Court to grant warrant summarily to eject the defender, who is occupying a portion of the security subjects, namely, the dwelling-house known as Hanover House, Ness Bank, Inverness. The initial writ bears that they base that crave upon section 5 of the Heritable Securities Act of 1894.

The history of the matter is this, that the bond and disposition in security was granted by the defender and her husband. Afterwards there were other money transactions between the defender and Mr Etienne Hugonin, who is a solicitor in Inverness, and who is one of the body of trustees. There was another bond granted which does not enter into the matter; but eventually there was a disposition granted by the lady—who afterwards became full proprietrix, the husband being dead—there was a disposition granted by her of the property in favour of Mr Etienne Hugonin. She says that the disposition was an out-and-out disposition and that at the time it was granted Mr Hugonin promised her that she should not be disturbed in her occupancy of a portion of the subjects, namely, this house Hanover House, Ness Bank, Inverness.

Now the only question that could be raised was whether the crave of the pursuers was a legal crave. One can understand that if the defender considered that she had had this undertaking from Mr Hugonin she would consider herself very hardly used at being put out of her house by anybody for whom Mr Hugonin was really responsible. But at the same time in law there is no question that the body of trustees are separate persons from Mr Hugonin, and that the rights of the body of trustees under their bond and disposition in security cannot be affected by any engagement made by Mr Hugonin as an individual.

Now the Sheriff-Substitute held that the section did not apply because he found that the section only dealt with a proprietor in occupation, and he thought that, standing the absolute disposition which I have mentioned, it could not be said that Mrs Macpherson was the proprietor. To that view the pursuers made answer that they should be entitled to prove that she really was proprietor, and that the disposition, though ex facie absolute, was truly a disposition in security; and they contended—and I do not suppose there was any doubt as to that—that if she was truly the proprietor then she answered to the description of proprietor in section 5 of the Act of 1894.

Accordingly the learned Sheriff reversed the decision of the Sheriff-Substitute and allowed the pursuers a proof upon that matter; and having taken a proof, he came to the conclusion that the disposition, although ex facie absolute, was truly a disposition in security, and that the defender still remained proprietor. He therefore held that the section applied and granted the remedy craved.”

The interlocutors of the Sheriff-Substitute ( Grant) and Sheriff ( Wilson) were — “3rd February 1911—The Sheriff-Substitute

Page: 956↓

having considered the cause, finds in fact that the defender signed the letter No. 12 of process and adopted it as holograph; and in law that it acknowledged the existence of a radical right in her own favour notwithstanding the terms of the absolute disposition No. 11 of process: Therefore decerns ejection in terms of the crave, but supersedes extract for three days: Finds the pursuers entitled to their expenses,” &c.

“8 th March 1911—The Sheriff having considered the cause refuses the defender's appeal: Affirms the findings in fact and in law contained in the interlocutor of the Sheriff-Substitute, of date 3rd February 1911; Further finds in fact (1) that the pursuers are the creditors in right of the bond and disposition in security, No. 7 of process: (2) that the defender made default in the due payment to the pursuers of the half-year's interest which became payable under the said bond and disposition in security at the term of Martinmas 1909; and (3) that the defender is in personal occupation of a portion of the security subjects comprehending the dwelling-house known as Hanover House, Ness Bank, Inverness, which security subjects were disponed in security by the said bond and disposition in security: And finds further in law that the pursuers are entitled to obtain warrant to have the defender ejected from the said portion of the security subjects of which she is in occupation as aforesaid, and therefore affirms the interlocutor of the Sheriff-Substitute, of date 3rd February 1911, subject to this alteration, that extract shall be superseded for fourteen days, and decerns in terms of the crave of the initial writ and grants warrant of ejection accordingly, but superseding extract for fourteen days: finds the pursuers entitled to the additional expenses of this appeal,” &c.

The defender appealed and argued that she was not proprietor in the sense of the Heritable Securities (Scotland) Act 1894 (57 and 58 Vict. cap. 44), inasmuch as she had conveyed the subjects in question to Mr Hugonin.

Counsel for the respondents submitted that no valid reason had been stated in support of the appeal, and therefore craved the Court to affirm the judgment of the Sheriff.