Scottish Court of Session Decisions

James Walker Inglis, Accountant of Court, pursuer and nominal raiser, brought an action of multiplepoinding against Charles Williamson, Chartered Accountant, Aberdeen, curator bonis of Marian Jane Wallace, real raiser, Elizabeth Smith Wallace, whose address was unknown, Edith Evans Wallace, and others, including Robert Smith Wallace, insurance inspector, Aberdeen, defenders.

The following narrative of the circumstances of the case is taken from the opinion of the Lord Ordinary ( Constable) annexed to an interlocutor of 5th April 1923:—“The fund in medio in this case consists of the balance of the price of two houses which belonged to three sisters in equal pro indiviso shares, and were sold by order of the Court in an action of division and sale, the proceeds being deposited in bank in name of the Accountant of Court. The net amount consigned is £1319. Claims on the fund have been lodged for two of the sisters who were beneficially interested in the property—Miss Marian Wallace and Miss Edith Wallace. Miss Marian Wallace, who has been incapax for many years, is represented by a curator bonis. No claim has been lodged for the third sister Miss Elizabeth Wallace, whose present address is not known. Claims for a preferential ranking have also been lodged for various creditors, including the superior for arrears of feu-duty, a firm of law agents who assert a lien over the titles, and Robert Smith Wallace, a brother of the owners, who held two bonds over the properties and who claims payment of the principal sums due thereunder and arrears of interest thereon, and repayment of disbursements for feu-duty, rates, and income tax in respect of the property. There are also various riding claims, including claims by the Aberdeen Town Council and Aberdeen Parish Council for arrears of rates and assessments. The principal question discussed before me was the relevancy of the averments made by the curator bonis of Miss Marian Wallace with regard to the claim of Robert Wallace. Before considering these averments it will be convenient to give a short account of the history of the property. It belonged to the mother of the recent owners, and on her death in 1893 it was liferented by her husband, who died in 1908. One of the

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houses, No. 47 Waverley Place, was occupied by Mr Wallace senior and his family, and after his death his family remained in occupation. In 1909 Miss Marian Wallace was removed to an asylum, and thereafter Robert Wallace and Miss Edith Wallace continued to occupy the house until they were ejected in 1922 after the judicial sale of the property. The other house, No. 49 Waverley Place, was apparently never let. In May 1907 Robert Wallace acquired right to two bonds over the property for £350 and £200 respectively, and he now claims interest thereon from Whitsunday 1909 to Martinmas 1922, amounting to £371. He also claims that he paid feu-duty and rates and assessments in respect of the properties from 1908 to 1915, and income tax in respect thereof from 1908 to 1916, amounting in all to £204, of which £55 represent occupiers' rates. It appears from the claims for the superior, the Town Council, and the Parish Council that no feu-duty or parish rates have been paid since 1915 and no burgh assessments since 1916. The curator bonis to Miss Marian Wallace says that on his appointment in 1918 he found that the property had been neglected, that no attempt was being made to let the vacant house, and that the superior was threatening to irritate the feu. He accordingly deemed it necessary in the interests of the ward to raise an action of division and sale, under which the property was at length realised. The net result is that after occupying along with his sister one of the houses for fourteen years and allowing the other house to remain unlet, Robert Wallace now comes forward with an accumulated claim for arrears of interest and disbursements in which no credit is given for any benefit or return received from the property during the period, and which will sweep up nearly the whole net proceeds which have now been realised from it. The circumstances seem to call for the closest scrutiny of the claim in the interest of the ward. Miss Edith Wallace takes no exception to the claim, and is indeed represented by the same agents and counsel as her brother. It appears from the articles of roup in the action of division and sale that the property was sold free of incumbrances. In these circumstances the curator bonis does not dispute that subject to the qualifications after mentioned Robert Wallace has a preferential claim for the principal and interest due under his bonds. But in the first place it was admitted by counsel for Robert Wallace at the hearing, though it is not admitted in the pleadings, that the claim is subject to deduction of the claim No. 13 in the printed record, which is founded on an adjudication of the bond for £350 [at the instance of James Parker Niven, solicitor, Edinburgh]. In the next place the curator bonis maintains that the claim is subject to deduction of rents received, or that ought to have been received, by Robert Wallace from the property and of loss caused by him on the realisation thereof. The pleas to this effect are founded on the following averments:—It is said that after acquiring the two bonds over the property Robert Wallace took possession of and managed and controlled the same. In June 1908, before the death of Mr Wallace senior, his curator proposed to let 49 Waverley Place and put up a notice-board for that purpose, but the notice was twice removed by Robert Wallace, who was thereupon interdicted from doing so. Not with standing the interdict he thereafter removed a third notice-board which was erected and was fined for breach of interdict. Shortly thereafter it is said Mr Wallace senior died, and Robert Wallace was left in undisputed control and management of the property. He and his sister Edith Wallace continued to occupy the house No. 47 Waverley Place, and No. 49, though it could have been easily let at a rental of £40 or thereby, was allowed to stand empty and to fall into decay. When the action of division and sale was raised he and his sister though they lodged no defences deliberately and persistently obstructed the proceedings by refusing to allow the reporter and intending purchasers access to the houses notwithstanding repeated orders of the Court to do so, and by placarding the houses with notices that the sale was against the wishes of the proprietors and bondholder. The obstruction to the inspection of No. 49 Waverley Place was obviated by an order from the Court to break into it and substitute a new lock and key, but the consequences of the illegal resistance to the inspection of No. 47 Waverley Place was that the house had to be sold without inspection, and though equal in value to the other house it realised £350 less. In consequence of these actings the Lord Ordinary in dealing with the expenses of the action of division and sale found that part thereof, amounting to £80, was incurred by Miss Edith Wallace's failure to comply with the orders of the Court, and ordered that amount to be debited exclusively against her share of the proceeds.”

The action was ultimately settled by joint minute to which the Lord Ordinary interponed authority on 18th and 20th July 1923. By the fifth clause of the joint-minute it was provided—“That Robert S. Wallace and James P. Niven shall execute and deliver to the real raiser discharges in common form for the amounts of their respective interest in the bonds for £350 and £200 referred to in their claims … and that the expenses of the execution of the said discharges as taxed shall be ranked on and be payable out of the fund in medio in priority to the said £600. If Robert S. Wallace does not sign and deliver such discharges, then the £600 payable under head four hereof shall be charged, secundo loco, with the expenses as taxed incurred by claimant the curator bonis in clearing the record of the said bonds to the extent such expense is referable to such failure of the said Robert S. Wallace to sign and deliver such discharges.”

On 16th November 1923 the Lord Ordinary having been informed at the bar that Robert Smith Wallace refused to sign and deliver discharges of the bonds, ordained him to do so within six days. This order was duly

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served upon Robert Smith Wallace but he failed to obtemper it. On 14th December the Lord Ordinary appointed the agent for the real raiser to intimate to Robert Smith Wallace his Lordship's intention on 19th December 1923 to report to the First Division his failure to obtemper the order.

On 19th December 1923 the Lord Ordinary reported the case verbally to the First Division, and expressed the opinion that in view of Robert Smith Wallace's persistent refusal to obtemper the orders of the Court authority should be granted to the Clerk of Court to sign the discharge in his place. His Lordship stated that he had accordingly reported the case in order that the Court might, if so advised, grant the authority in the exercise of its nobile officium, it being in his opinion beyond his powers to grant such authority. He pointed out that the fund in medio was the price of property sold under the orders of the Court, that it had been consigned in the hands of an officer of the Court, and that the Court was therefore under a duty to see that no obstacle was put in the way of the purchasers getting a clear title. He further pointed out that the share of the fund falling to Robert Smith Wallace would not be sufficient security for the expenses of an action of declarator to clear the title. His Lordship referred to the following authorities:—Graham Stewart on Diligence, pp. 231 and 847; Sinclair v. Staples, 1860, 22 D. 600, per Lord Cowan at p. 606; the Entail (Scotland) Act 1882 (45 and 46 Vict. cap. 53), sec. 18; Whyte v. Whyte, 1913, 2 S.L.T. 85; Ruthven v. Ruthven, 1905, 43 S.L.R. 11; Hendry's Trustees v. Hendry (where an order was pronounced though the case is not reported on this point), 1916, 53 S.L.R. 757, at p. 760. Counsel for the real raiser moved the Court to grant authority to the Clerk of Court to sign the discharge, and referred to the following authorities:— Guthrie v. Chrystal, Irvine, & Duncan, 26th November 1913(unreported), where the Clerk of Court was authorised to sign transfers of shares which a company was ordained to register, and Scots Style Book, vol. iv, p. 452. No appearance was made for Robert Smith Wallace.

At advising—