Scottish Sheriff Court Decisions

MICHAEL JAMES MESTON REID, Permanent Trustee upon the sequestrated estates of Carlene Rose Burnett v. HARVEY LEIGHTON GRAINGER and MOIRA ELIZABETH GRAINGER [2000] ScotSC 23 (28th August, 2000)

ABERDEEN AUGUST 2000

The Sheriff Principal, having resumed consideration of the cause, Allows the appeal and Recalls the interlocutor of 25^th July 1995; Sustains the first plea-in-law for the defenders and Dismisses the action; Certifies the appeal as suitable for the employment of senior counsel; Finds the pursuer liable to the defenders in the expenses of the cause; Allows the defenders to give in an account of expenses and remits the same when lodged to the auditor of court to tax and to report.

In October 1990 Mrs Carlene Rose Burnett (hereinafter referred to as "the debtor") entered into missives with the defenders for the sale and purchase of heritable subjects at 94 Malcolm Road, Peterculter. On 8^th November 1990 a duly executed disposition by the debtor was delivered to the defenders in exchange for the purchase price. On 9^th November 1990 the defenders took entry to the subjects. For reasons which are not germane to the present issue, the disposition in favour of the defenders was not recorded until 27^th January 1992. In the meantime, the debtor had been sequestrated, the date of sequestration in terms of Section 12(4) of the Bankruptcy (Scotland) Act 1985 being 29^th May 1991. The pursuer is the permanent trustee on the debtor's estate by virtue of act and warrant dated 23^rd July 1991. He recorded a notice of title to the subjects in the General Register of Sasines on 10^th December 1991, that is to say, one month prior to the recording of the defenders' disposition.

The pursuer's second crave is "To find and declare that the property in the said subjects is meantime and has since the date of sequestration been vested in the Pursuer as Permanent Trustee of the said Carlene Rose Burnett". The first and third craves seek declarator that the defenders are not entitled to occupy the subjects, and warrant for their ejection therefrom. By interlocutor of 25^th July 1995 pronounced after debate the sheriff sustained the relevant pleas-in-law for the pursuer and granted decree in terms of craves 1, 2 and 3. At the debate the sole issue was the relevancy of the defenders' averments intended to set up a case that the pursuer was personally barred from enforcing the remedies which he sought. It was expressly conceded on behalf of the defenders that unless that defence could be established the pursuer must succeed. The sheriff held the averments of personal bar to be irrelevant, and his decision on that point is not challenged. The defenders marked an appeal and a diet was fixed. Parties then became aware that the decision of the First Division in Sharp v. Thomson 1995 SC455 had been appealed to the House of Lords. Appreciating that this might open up a new area for argument, they agreed to have the appeal sisted pending the decision of the House of Lords which was, in due course, reported at 1997 SC (HL) 66. That sist endured for the best part of two years. Thereafter a fresh diet of appeal was fixed, but it too was discharged and the case was again sisted for almost a year while parties engaged in discussions which, in the event, did not prove fruitful.

Counsel for the defenders submitted that the critical question was whether the subjects formed part of "the whole estate of the debtor" so as to vest in the trustee by virtue of Section 31(1) of the Bankruptcy (Scotland) Act 1985. That was the approach which had been adopted by the House of Lords in Heritable Reversionary Co Ltd v. Millar 1892 19R (HL) 43 when considering what constituted "the whole property of the debtor", in terms of Section 102 of the Bankruptcy (Scotland) Act 1856 (per Lord Herschell at 44, Lord Watson at 49 and Lord Macnaghten at 53). The same approach had been followed by the House of Lords in Sharp v. Thomson 1997 SC (HL) 66 per Lord Jauncey at 68H and Lord Clyde at 79G, where the question was whether certain heritable subjects formed part of the "property and undertaking" of a company to which a floating charge attached.

In order to answer that crucial question counsel submitted that a sensible legal and conventional meaning had to be given to the expression "whole estate", which was not a technical term in Scots law. The expression "property of the debtor", which appeared in earlier bankruptcy statutes, had been treated in a non-technical way in Heritable Reversionary Co v. Millar (supra) per Lord Herschell at 44, Lord Watson at 49 and Lord Macnaghten at 53. Similarly, in Sharp v. Thomson (supra), Lord Jauncey at 76I and Lord Clyde at 80E, stated that "property" was not a technical legal expression. It thus appeared that both in bankruptcy and in receivership the question of whether or not subjects formed part of the property of the debtor or company was not to be determined by the technical consideration of who held a feudal title giving a real right. The proper approach was to equiparate "the whole estate of the debtor" where it appeared in Section 31 of the 1985 Act with all property heritable and moveable wherever situated which belonged to the debtor at the date of sequestration. Subject to sub-sections (8) and (9) "the whole estate of the debtor" in section 31 of the 1985 Act was no different from "the whole property of the debtor" in Section 102 of the 1856 Act. What was clear from Heritable Reversionary Company Limited v. Millar was that, where a bankrupt held property as a bare trustee but with an unqualified feudal title, that property did not form part of his property for the purposes of the 1856 Act. The ratio was not, however, restricted to cases in which property was held in trust. The decision had turned wholly upon the construction of the 1856 Act (Lord Macnaghten at 53) and had been expressed in terms which went beyond the trust situation. What had been decided was that "the property of the debtor" did not include property in which he had no beneficial interest and which he could not dispose of without fraud, notwithstanding that he might have a valid heritable title thereto (Lord Watson at 49/50, Lord Macnaghten at 53/54). The principle established in Heritable Reversionary Company Limited had been followed in Forbes' Trustees v. Macleod 1898 25R 1012 and Thomas v. Lord Advocate 1953 SC151 as well as in Sharp v. Thomson, yet none of those cases involved a trust. There was thus clear support for the extension of the principle beyond the field of trust.

Counsel went on to submit that a person who had delivered a disposition in exchange for the price of the subjects retained no beneficial interest in those subjects. In that situation any subsequent disposal of the subjects by the nominal owner in favour of a third party would be a fraud. Property to which the seller retained only a formal feudal title was not in his beneficial ownership, and accordingly did not form part of his property for the purposes of the bankruptcy statutes. That view had been taken by text book writers in Goudy on Bankruptcy, 4^th edition, pages 250ff, and Greens' Encyclopaedia of the Laws of Scotland, Volume 13, paragraphs 989 and 990. In particular, in footnote (c) to page 251 of Goudy (supra) it was stated that the definition of property taken from the speech of Lord Watson in Heritable Reversionary Company "would seem to exclude property sold by the bankrupt upon a delivered conveyance which has remained unrecorded", while in Greens' Encyclopaedia, at paragraph 990, it was stated that the property transferred to the trustee on sequestration would not include inter alia "estate originally belonging to a debtor in beneficial ownership but which he has prior to his sequestration onerously conveyed or assigned by delivered disposition or assignation although the disponee has not completed his title by infeftment or intimation before completion of the title of the trustee". The matter was discussed in the Scottish Law Commission Report on Bankruptcy, No. 68, published in 1982, paragraphs 11.26 - 11.29, which had recommended that subjects in respect of which the bankrupt had granted a disposition in exchange for the price should not fall to the trustee upon sequestration, but since the writer had treated the question as one of property law rather than statutory construction, the report was of limited significance here.

Mr Gale submitted that the matter was placed beyond doubt by the decision of the House of Lords in Sharp v. Thomson (supra). Lord Jauncey, at 72F, saw no distinction in principle between the position of the holder of an ex facie absolute recorded disposition who held as a bare trustee or in security having granted a back letter and the holder of such a deed who had delivered a disposition to a disponee in exchange for the price. He observed that Lord Watson's observations in Heritable Reversionary Company Limited as to what can be described as a man's property were couched in entirely general terms and not restricted to the facts of the case before him. His reasoning was summed up in a passage between 76C and 77I: he did not suggest that the delivery of a disposition in exchange for the price created a real right in the purchaser, but he drew a distinction between that situation and one in which there had been no more than an exchange of missives; once the disposition had been delivered, the seller retained no beneficial interest in the property, and were he to grant a subsequent disposition in favour of a third party, he would commit a fraud. The ability to commit such a fraud by virtue of a recorded title did not amount to a right of property. Mr Gale argued that that reasoning precisely fitted the situation here. Lord Clyde might be regarded as having taken a more cautious approach, focusing more on matters specific to receivership, but the material parts of his speech supported the position of the defenders here. He disclaimed any intention of trenching upon established principles of the law of property, but he observed, at 80G, that "property" and feudal title might not be synonymous. He described Heritable Reversionary Company Limited v. Millar as "particularly instructive", and, at 81G, he rejected a submission that that case applied only where there was a trust, referring with apparent approval to footnote (c) on page 251 of Goudy on Bankruptcy. He concluded that, having delivered a disposition in exchange for the price, the company had lost the beneficial interest in the subjects as well as the power lawfully to dispose of them. From the closing passages of his speech it was evident that Lord Clyde had been looking to the question whether the company had any beneficial interest in the subjects at the date of crystallisation of the floating charge, and he had held that it had no such interest. There was no essential difference between his approach and that of Lord Jauncey. Counsel submitted that that reasoning should be applied to the instant case. Prior to the date of sequestration the debtor had executed and delivered a disposition to the defenders in exchange for payment of the price. Accordingly, as at the date of sequestration, she had no beneficial interest in the subjects. That being so, the subjects were not part of the debtor's estate and did not vest in the pursuer. Sharp v. Thomson was admittedly concerned with receivership, but it would be remarkable if different results were to be reached according to whether the question arose in the context of receivership, liquidation or personal insolvency. The approach of the House of Lords in Sharp v. Thomson had been intended to avoid a manifest injustice (per Lord Jauncey at 70D, Lord Clyde at 82G) and the same injustice would arise here if the pursuer were successful.

Counsel for the pursuer submitted that on a proper interpretation of Section 31 of the Bankruptcy (Scotland) Act 1985 the subjects had fallen into the sequestration. The discussion in Heritable Reversionary Co Ltd v. Millar (supra) of what fell within "the whole property of the debtor" under the 1856 Act had been superseded by the 1985 Act. In that case it had been held that property held on trust did not form part of the property of the debtor. Section 33 of the 1985 Act, however, (to which Section 31 was subject) provided that certain "property of the debtor" including "property held on trust by the debtor for any other person" should not vest in the trustee. What that provision meant was that the bankrupt's property included everything to which he had a formal title, but that, where that title was in trust, the property in question was excluded from the sequestration. It could thus be seen that "property" under the 1985 Act could not bear the same meaning as the same word in the 1856 Act as interpreted in Heritable Reversionary Co Ltd. It followed that the decision in Heritable Reversionary Co Ltd could not be relied upon as a guide in the present case. That this was the correct approach could be confirmed by reference to the Scottish Law Commission report No. 68 on Bankruptcy. In paragraph 11.25 of that report the commission had recommended legislative exclusion of property held in trust by the bankrupt on the sequestration, and they had proposed a clause in the bill in terms which had been enacted in Section 33(1) of the Act. In making their recommendation the commission had clearly taken the "formal feudal title" approach to the meaning of property. It was also of considerable importance that at paragraphs 11.26 - 11.29 the commission had considered the position of the purchaser of heritable property who, at the date of the seller's sequestration, had paid the price and received but not recorded the disposition. The commission had recommended that such property should be excluded from vesting in the trustee, and proposed a clause to that effect in the bill. It appeared, however, that Parliament had rejected that recommendation as the 1985 Act contained no section reflecting the terms of the proposed clause. The inference was that Parliament must have decided not to protect persons in the position of the defenders here. Counsel submitted that it could not have been Parliament's view that such parties were already protected by the decision in Heritable Reversionary Co Ltd because the change in the meaning of "property" as between the 1856 and 1985 Acts rendered that decision obsolete. Counsel also pointed out that in its response dated 16^th March 1995 to a Department of Trade and Industry consultation paper of November 1994 the Commission had departed from its earlier recommendation. The reasoning behind the Commission's revised view was that there was no injustice to the uninfeft disponee in requiring him to compete in the race to the register: it was a race which he was likely to lose only if his legal advisers were negligent.

Counsel went on to submit that his construction of the 1985 Act was consistent with the established law of property in Scotland. The basic principle, which applied both to heritable and moveable property, was that property resided in the party who held the title thereto, and did not leave him until the necessary formal and public step had been taken. In the case of heritable property, that step was the registration of his title by the purchaser. The law recognised no intermediate kind of ownership (Sharp v. Thomson 1995 SC455, per Lord President Hope at 468F/G, Lord Sutherland at 485G/H, Lord Coulsfield at 504D). An assignation of moveable property was not effective to transfer the right of property until it had been intimated to the debtor (Tod's Trustees v. Wilson 1869 7M 1100, at 1101, Strachan v. McDougle 1835, 13S 954, Morrison v. Harrison 1876, 3R 406). It was important to keep in mind the basic principle concerning the transfer of ownership of property because when Sharp v. Thomson came before the House of Lords, Lord Clyde at least acknowledged that there was no challenge to the analysis of the law of property made by the First Division in the passages cited above.

Turning to Sharp v. Thomson 1997 SC (HL) 66, Mr Hodge submitted that the respective speeches of Lord Jauncey of Tullichettle and Lord Clyde disclosed two very different and mutually inconsistent approaches. Lord Clyde had taken a narrower and more cautious approach which was consistent with the established law of property. He had focused his attention on interpreting the words "the property comprised in [the] property and undertaking of [the company]" in the context of a floating charge, which was a concept alien to Scots property law (78F, 79H). He had noted, at 80B, that no challenge was made to the First Division's analysis of the basic concepts of Scots property law, but he had gone on to say, at 80D/E, that the word "property" could take its meaning from its context. Thereafter, founding strongly upon Heritable Reversionary Co Ltd v. Millar (supra) (and failing to note the self-contradictory nature of the comment thereon contained in footnote (c) to page 251 of Goudy on Bankruptcy (supra)), he had concluded that in the particular context of a floating charge a narrow construction should be given to the words "property and undertaking" (82A-E, 83D/E, 85B/C). He had expressly disavowed any intention of eroding the established law regarding the transfer of property, and accepted the continuing possibility of a race to the register (83A-E). Counsel submitted that that analysis gave no support to the defenders here. The context provided by the Bankruptcy (Scotland) Act 1985 was quite different from that which existed in relation to floating charges and receivership. Under the 1985 Act there was no policy reason for giving an unusual or restricted meaning to "property". For reasons which had been advanced above, the word here must have its established meaning in the law of property. For the same reasons, Lord Clyde's reliance upon Heritable Reversionary Co Ltd v. Millar, which no longer ruled in questions of sequestration, indicated that his Lordship's reasoning also did not apply here.

Counsel contended that Lord Jauncey had taken a more radical approach. The distinction which he had made between a "beneficial interest", which passed upon delivery of a disposition, and the real right of property, which did not, involved a duality of ownership which had been rejected by Lord Clyde. He had agreed (at 74D/E) with dicta of Lord President Emslie in Gibson v. Hunter Home Designs Ltd 1976 SC 23, regarding the three stages of a conveyancing transaction, and thereby disagreed expressly with Lord President Hope in the court below, and impliedly with Lord Clyde, who had accepted the First Division's analysis of property law. The proposition that "beneficial interest" passed to the purchaser on delivery of the disposition because the seller had done all that was required of him in terms of his contract led to a variety of practical difficulties. He had also been at odds with Lord Clyde in rejecting the possibility of a race to the register (77F/G).

Counsel submitted that, since the two main speeches in Sharp v. Thomson were mutually inconsistent, and since the other three judges had concurred with both, no ratio could be extracted from the decision except that a floating charge did not attach a heritable property after the seller company had delivered a disposition because such property was no longer property comprised in the company's property and undertaking. If the ratio were so restricted it did not apply to the present case. Counsel submitted that if one were to apply the decision more widely on the basis of Lord Jauncey's reasoning, it would lead to great uncertainty in the law of property and, indeed, the law of insolvency. If Lord Jauncey's approach were adopted, one had to enquire why the holder of an unrecorded disposition would be protected against the claim of the trustee in bankruptcy, whereas the holder of an unintimated assignation would not; why such a disponee should be protected against a trustee, but not against an adjudger; why a race to the register should be required in respect of shares, but not in respect of heritage; why text book writers over the years should have felt it necessary to discuss the race to the register (Graham Stewart on Diligence, 620/621, Goudy (supra), 256/257, McBryde on Bankruptcy, Second Edition, paragraphs 9.17 - 9.22), why a disponee should enjoy a protection not given to a heritable creditor who had not recorded his security or a tenant under a long lease who had not registered his lease; and why, in any case where there was competition between two dispositions or between a disposition and a standard security or any similar competition, its result would depend upon the respective dates of registration, whereas in insolvency the result would depend on the delivery of a disposition which was a private and often undocumented act. A further consideration was that if some right of property passed with delivery of the disposition, the faith of the register would be undermined. An intending purchaser of heritage from a trustee in bankruptcy could not rely upon the register because the trustee's title would be void if an unrecorded disposition had been delivered by the bankrupt prior to the date of sequestration. The correct conclusion which avoided those difficulties was to hold that Sharp v. Thomson did not affect the general law of property, and, in particular, did not affect the meaning of "property" under the 1985 Act. The debtor was no more divested of property by delivering a disposition to a purchaser than he was by entering into missives which obliged him to deliver such a disposition. It remained open to him to enter into a competing bargain at any time prior to registration. It was possible to envisage circumstances in which his actings in so doing might be inadvertent rather than fraudulent. Where insolvency occurred it was inevitable that some parties would be losers, but that was not a reason for innovating upon the established Scots law of property. Counsel accordingly moved that the appeal should be refused.

In reply, counsel for the defenders accepted that Section 33 of the 1985 Act was a statutory recognition of what had been decided in Heritable Reversionary Co Ltd, but he argued that it was confirmation of the existing law rather than innovation thereon. Whilst accepting that in Sharp v. Thomson Lord Clyde's words had been more circumspect than those of Lord Jauncey he submitted that there was no essential difference between them: both had sought to establish who had the beneficial interest in the property at the material time; both had placed reliance upon Heritable Reversionary Co Ltd; both had equated the position of the holder of a delivered but unrecorded disposition with that of the beneficiary under a trust; and both had held that, after the delivery of a disposition, the property in question ceased to form part of the property and undertaking of the company. There was no difference of opinion concerning the race to the register, which was mentioned only in order to draw a contrast between the position of, for example, a trustee in bankruptcy and that of a receiver. Neither in Sharp v. Thomson nor in the instant case did any question of a race to the register arise. Both judges had accepted the proposition based upon Thomas v. The Lord Advocate 1953 SC 151, that property and feudal title might not be synonymous (Lord Jauncey at 73/74, Lord Clyde at 80F/G). Neither of the judges purported to innovate upon the established law of property, and the defenders' argument did not do so here. Even if the decision in Sharp v. Thomson did give rise to the difficulties suggested by counsel for the pursuer, that was not a reason for not applying it if it was relevant to the circumstances of this case.

Parties were agreed that the critical issue was whether the subjects fell within "the whole estate of the debtor" in terms of Section 31(1) of the Bankruptcy (Scotland) Act 1985. The corresponding expression in Section 102 of the Bankruptcy (Scotland) Act 1856 which was considered by the House of Lords in Heritable Reversionary Co Ltd v. Millar 1892 19R 43 was "the whole property of the debtor". In that case the bankrupt held an unqualified feudal title to certain heritable property which he held in trust for his employers. It was held that, for the purposes of the 1856 Act, the subjects were not the property of the bankrupt. Lord Herschell, at 44, recognised the significance of the recorded title as enabling the holder to pass a good title to an onerous bona fide purchaser, but he rejected the proposition that subjects to which the bankrupt held title were ipso facto his property: "The expression [property of the debtor] is not a technical one, but is obviously intended to comprehend all that would ordinarily by understood as covered by it. It cannot be doubted that it includes all beneficial interests possessed by the bankrupt, even though the property be vested in other persons as trustees for him. On the other hand, I cannot think, unless compelled by authority to take that view, that it includes or was ever intended to include, estates of which the bankrupt was a bare trustee and in which he had no beneficial interest ..... the words 'belonging to' are not technical, and I do not think that a heritable estate of which the bankrupt is a bare trustee and in which he has no beneficial interest can with any propriety be said to 'belong' to him". Lord Watson, at 49, said "Were the subjects in dispute the property of [the debtor] within the meaning of that enactment at the date of his sequestration? Upon the language of the statute that appears to me to be a very simple question admitting only of a negative answer. An apparent title to land or personal estate carrying no real right of property with it does not in the ordinary or in any true legal sense make such land or personal estate the property of the person who holds the title. That which in legal as well as in conventional language is described as a man's property is estate, whether heritable or moveable, in which he has a beneficial interest which the law allows him to dispose of. It does not include estate in which he has no beneficial interest and which he cannot dispose of without committing a fraud". His Lordship went on to recognise that the trustee could, nevertheless, pass a good title to a bona fide alienee for value. Lord Macnaghten, at 52/53, said "It was argued that the question depends upon the feudal law of Scotland and upon certain provisions of the Bankruptcy Act of 1856. I venture to think that it turns wholly upon the language of the Act and that a decision in favour of the company would not in the slightest degree trench upon the principles of feudal law" and elsewhere on page 53 he continued "The words 'property' and 'belonging to' are not technical words in the law of Scotland. They are to be understood, I think, in their ordinary signification. They are, in fact, convertible terms - you can hardly explain the one except by using the other. A man's property is that which is his own - that which belongs to him. What belongs to him is his property. No one in ordinary parlance would speak of land or funds held only in trust for another as the property of the trustee". Lord Field, at 54, recognised that the bankrupt had an unqualified feudal title to the subjects, but he went on to express the view that "in a larger and broader sense, however, they were not his ...... the law of Scotland recognises as property the beneficial interest in the subject so that if the two interests, the legal on the one hand, and the whole

The decision in Heritable Reversionary Co Ltd was made in the context of a trust, but the speeches are expressed in terms capable of wider application. If that case remains relevant to the law of bankruptcy since 1985, I agree with counsel for the defenders that the principle which it established is not restricted to cases in which a trust exists. For present purposes, it is unnecessary to examine the intervening cases because the point is stated clearly in Sharp v. Thomson (supra) by Lord Jauncey at 72D-G and Lord Clyde at 81F/G.

In Sharp v. Thomson the sequence of events was similar to that in the present case: the seller of heritage received the price from the purchaser and delivered a disposition in exchange therefor, but, before the purchaser had recorded the disposition, the seller became insolvent. The difference is that in Sharp v. Thomson the seller was a company which went into receivership, whereas here the seller is an individual who was sequestrated. The question in Sharp v. Thomson was whether the subjects fell within the definition of "the property .... comprised in [the company's] property and undertaking" (Companies Act 1985 Section 462(1)). The House of Lords held unanimously that they did not. Lord Jauncey of Tullichettle and Lord Clyde delivered full speeches in both of which the other three judges concurred. I reject the suggestion made on behalf of the pursuer that the two principal speeches are mutually inconsistent and that, accordingly, there is no clear ratio to be extracted from the case. It might be sufficient to remark that, had there been any repugnancy or even material discrepancy, it is unlikely that it would have escaped the notice of Lord Keith of Kinkel, but it seems to me that, when the two speeches are examined, there is a common view on the material points. Both judges stated the question as being whether the subjects formed part of the property of the company at the material time (Lord Jauncey at 68H, Lord Clyde at 79H), and neither suggests any intention to innovate upon the established principles of the law of property (76E-F, 80B-D). From that starting point their Lordships went on to attempt to discover what was included within the expression "property" in relation to receivership, and, in doing so, they drew heavily upon the decision in Heritable Reversionary Co Ltd v. Millar, which was, of course, concerned with the meaning of "property" in relation to sequestration under the 1856 Act. The point which was taken from Heritable Reversionary Co Ltd was that "property" was not a technical expression, but that it must take its meaning from its context, and that both under the former bankruptcy legislation and under the current companies legislation, subjects could only be described as the property of a debtor if he had a beneficial interest therein. With reference to the situation where the seller of heritage has received the price and delivered a disposition, Lord Jauncey noted, at 70G-71D, that the respective positions of the parties were significantly altered, and he quoted the opinion of Professor Halliday that, as between buyer and seller, the latter had no longer any beneficial rights in the property. He went on, at 74A, to refer with approval to dicta of Lord President Emslie in Gibson v. Hunter Home Designs Ltd 1976 SC 23, which indicated that a significant alteration of the respective positions of seller and purchaser occurred when the disposition was delivered. Notwithstanding the submissions of counsel for the pursuer, it seems to me that the speech of Lord Clyde is very much to the same effect. At 83I, he said "While in terms of a strict legal analysis the holder of an unrecorded disposition still only has a personal right to the lands disponed, he has personally acquired such rights as make it reasonable to use the language of ownership in relation to him even though there has been no alteration to the quality of his right. This has been recognised in a number of cases from Earl of Fife v. Duff to Gibson v. Hunter Home Designs Ltd. As was recognised in the former case the legal effect of a disposition delivered but not followed by infeftment vests in the disponee most of the essential attributes of ownership, and the right which he enjoys is usually called a personal fee. I understand the Lord President in <