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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Miller v Wright [1835] CA 13_1038 (4 July 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1038.html Cite as: [1835] CA 13_1038 |
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Page: 1038↓
Subject_Bankruptcy—Right in Security—Personal Exception,—
A father feudally infeft disponed his lauds, with procuratory and precept, to his eldest son, under burden of certain sums provided to his wife and daughters, which sums were expressly declared a red burden on the lands—after the father's death the son possessed the lands for six years without making up titles, and his estates were then sequestrated—Question whether the trustee was entitled to make up a title to the lands by giving the bankrupt a special charge and adjudging, to the effect of taking up the estate without being liable for the provisions, in the same way as if the bankrupt's title had been made up under his father's settlement.
James Wright, of Lawton, was appointed trustee on the sequestrated estate of James Miller of Milton. Mrs Miller, widow of the father of the bankrupt, with the bankrupt's sisters, presented a bill of suspension and interdict, setting forth, that the father died feudally infeft in certain heritage, which he had disponed, along with his moveable estate, to the bankrupt: that the conveyance contained procuratory and precept, and was made under the burden of certain specific sums provided to the suspenders, and that these sums were expressly declared real burdens on the lands: that after the death of the father, the bankrupt, besides intromitting with the moveables, had possessed the lands for six years, and paid interest on the provisions, but had made up no titles, and that the trustee had lately executed letters of special charge against him to enter heir to his father, and intended, on the expiry of the charge, to lead an adjudication of the estate, and make up a title which would throw the father's disposition and settlement aside, and give room for a plea that the trustee was not liable to fulfil the provisions conceived in favour of the suspenders. They therefore pleaded, that, had the bankrupt attempted so to act, he would have been guilty of a fraud, and could have been legally restrained; and it was equally competent to restrain the trustee from doing, in the name and right of the bankrupt, what it would be fraudulent in the bankrupt himself to do.
1 And they craved that the trustee “be interdicted from proceeding to make up titles to the said lands in his own person, by adjudging the same from the said James Miller, as charged to enter heir in special to his father, the deceased James Miller, or from completing a title to the said lands and others, either in the person of the said James Miller, the bankrupt, or the said James Wright, as trustee foresaid, in any other way, except in
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1 Benton, Dec. 20, 1833 (ante, XII. 266),
The trustee pleaded—1. That the application was premature and incompetent, as the proper period for offering opposition would be when he should apply to the Court for adjudication. The present bill proposed to interdict the trustee, an officer of the Court, from applying to the Court itself for adjudication, which was novel and irregular. 2. He was bound, as a duty to the general creditors, to make up a title to the real estate, free from all burdens in favour of particular creditors if he could. The course he was about to take would have that effect, and he was entitled to pursue it; and, in any view, the utmost which the suspenders could ask would be, that a reservation of their claims of preference should be inserted in the adjudication in favour of the trustee. 1
The Lord Ordinary reported the cause. *
At advising the cause, it was intimated by the trustee, that the question raised was one which fairly deserved to be tried, and he should therefore consent to the bill being passed for that purpose.
The other Judges having concurred in the propriety of passing the bill of consent,
The Court passed the bill, and recalled the interdict, reserving the rights of both parties entire, as they stood at the date of this application.
Solicitors: Miller and Forbes, W.s— J. Christie, S.S.C.—Agents.
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1 Paul, May 19, 1829 (ante, VII. 621).
* “ Note—The Lord Ordinary reports this case because the business of the sequestration is said to be thwarted by the interdict being kept up, and, on the other hand, the rights of the suspenders would, it is said, be imminently endangered by its being recalled. The power of the Lord Ordinary, besides, to interfere with such a case is disputed; and, on the whole, it is fitter for the Court than for the Bill Chamber.”