 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Martin v Watson [1835] CA 13_366 (29 January 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0366.html Cite as: [1835] CA 13_366 |
||
[New search] [Help]
Page: 366↓
Subject_Right in Security—Reparation.—
The proprietor of a heritable subject paid a heritable creditor's debt by making a new loan; the heritable creditor, in place of conveying his security to the new lender, concurred in mala fide with the proprietor, in conveying the subject to a purchaser, and did this after inhibition had been used by the new lender on the dependence of an action against the proprietor and the said heritable creditor—Held, that the creditor was liable to convey his security to the new lender, or to make repetition of the loan to him.
This was a case of a special nature, in which William Martin, residing in Glasgow, raised an action against Richard Watson, shoemaker in Lanark, and Thomas Paton, weaver there, concluding for a conveyance to a heritable security over a subject belonging to Paton's predecessor, which security had been held by Watson for a loan of £30, which Martin had enabled Paton's predecessor to repay; or, alternatively, for repetition of the said sum. The Lord Ordinary assoilzied Paton on account of special circumstances, but decerned against Watson, and found him liable in expenses. His Lordship explained the grounds of his judgment in a note. *
Watson reclaimed.
_________________ Footnote _________________
* “The late Thomas Paton disponed the subjects mentioned in the libel to the defender Watson in security of a loan of £30. James Paton, the son of Thomas, borrowed £30 from the pursuer to redeem the subjects, and, as a pledge for repayment, put the title-deeds, or caused the defender Watson to put them into the pursuer's hands. This pledge would not have constituted an heritable security in favour of the pursuer in a question with Paton's creditors; but it is sufficient evidence, in a question with Paton and his representatives, that it was intended that the pursuer should have an heritable security, or at least that the reconveyance from Watson was to be in his favour. Paton paid the redemption money thus borrowed from the pursuer to Watson, and before any deed of reconveyance was granted, the present action was raised by the pursuer against Watson, and inhibition used upon the dependence. In the face of that diligence Watson reconveyed the subject to the defender Paton, by whom it has been sold, and the pursuer, in consequence, deprived of the security to which he was entitled, and which the defender Watson had no interest to withhold. Although Watson's allegation were true, that he delivered up the title-deeds to Paton when the redemption money was paid, yet, as he had not retrocessed Paton before the present action was raised, and inhibition used upon it, he was not entitled to defeat that diligence. If he could not have obtained Paton's consent that the reconveyance should be taken to the pursuer, he ought to have called both in a multiplepoinding.”
The Court adhered.
Solicitors: J. Pedie, W.S.— A. Anderson—Agents.