Scottish Court of Session Decisions

Alexander Young, baker in Edinburgh, died in 1834, without leaving any settlement, or nomination of tutors to John Young and others, his four children, all of whom were pupils. Simon Donaldson was appointed factor loco tutoris to the pupils, with the usual powers. Alexander Young left a free moveable estate amounting to £447, and a pro-indiviso half of part of a tenement in the High Street of Edinburgh, which had been bought by him, and one Pendreich, in 1827, at a price of £384. This price was, however, abated to £369, in consequence of the titles being liable to exceptions, which it appeared difficult to cure, before the long prescription should run. The rent subsequently fell to £25. In these circumstances, Archibald Thomson, merchant in Edinburgh, the proprietor of the rest of the tenement, offered a sum of £500 for that part of it, held pro-indiviso, as above mentioned, stipulating for a disposition with clause of absolute warrandice: and he also offered to allow that half of the price in which the heir of Alexander Young was concerned, to remain a real burden on the subject, during his minority, at 5 per cent. A valuation of the subject was obtained from Mr George Smith, architect to the City Improvement Commissioners, who estimate it at £420. Pendreich accepted Thomson's offer. In these circumstances, Donaldson, with the concurrence of the mother of the pupils, and of their nearest agnate, presented a petition stating that it was evidently for the interest of the pupils that the offer of Thomson should be accepted, and that he, from being a proprietor of the rest of the tenement in question was offering a price, considerably higher than the estimated value, and higher than any other person would offer. The petitioner prayed the Court “to grant warrant to, and authorize, the petitioner, or the said Archibald Thomson, to expede all requisite titles, in due and competent form, for vesting in the said John Young the just and equal half pro-in-diviso, belonging to the said Alexander Young, his father, of all and whole the subjects before described; and also to grant warrant to, and authorize, the petitioner to concur with the other pro-indiviso proprietor of the said property, in accepting the terms offered by the said Archibald Thomson, for a purchase of the property, and in carrying the sale to him into effect, by executing a disposition or conveyance of the same in his favour, with all usual clauses; and specially under burden of the pupil's share of the price, so as the same may be, and remain, a real and preferable lien and burden on the whole property; and also, when necessary, to uplift and discharge and re-invest the same; saving always and reserving the heir's right and privilege of collation of his father's heritable and moveable property, and all other rights and claims in and concerning the price, in like manner as if the same had not been realized by the sale; or to do otherwise, ¹ &c.”

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¹ Petitioner's authorities—Wilson, Dec. 11, 1834 (ante, XII., 176); Livingstone, July 3, 1835 (ante, XII., 1033); Ferguson, Jan. 14, 1836 (ante, XIV., 213).

The Court, after ordering intimation, and no appearance being made to oppose the petition, remitted to the junior Lord Ordinary to inquire and report upon it. His Lordship remitted to an accountant, who, after obtaining a valuation from a builder, stating a somewhat lower estimate than that of Smith, reported that the contemplated transaction was for the manifest benefit of the pupil. The Lord Ordinary having reported to the Court in these terms, their Lordships granted the prayer of the petition.