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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barstow v. Dunn's Trustees [1870] ScotLR 8_169 (3 December 1870) URL: http://www.bailii.org/scot/cases/ScotCS/1870/08SLR0169.html Cite as: [1870] SLR 8_169, [1870] ScotLR 8_169 |
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Page: 169↓
Trustees under a trust-deed brought an action of multiplepoinding, which included all the property which was disponed to them under said deed. Thereafter a final judgment reduced the deed to a certain extent, and declared certain subjects to belong to the heir-at-law of the truster. Held that the proper course of the trustees was to deliver over these subjects immediately to the heir-at-law, and not await the issue of the multiplepoinding, although they had formed part of the fund in medio, and had been claimed in that process.
This was an appeal from the Sheriff-court of Lanark in an action of removing at the instance of the curator bonis of William Park against Mr Carrick of the Royal Hotel, Glasgow, and the trustees of the late Alexander Dunn of Dunntocher.
William Park was heir-at-law of Alexander Dunn, and in 1866 his curatar bonis obtained a final judgment of the House of Lords, whereby the subjects from which the defenders were sought to be removed were declared to fall under a reduction of the deathbed settlement of Alexander Dunn, and to go to his heir-at-law. In 1862 an action of multiplepoinding had been brought by the trustees of Alexander Dunn, which is still in dependence, embracing the whole funds belonging to Dunn, which had been disponed to them under this deed of settlement; and in this action the subjects in question formed part of the fund in medio, and a claim for them was lodged by the present pursuer. The defence of Mr Carrick was, that he had a lease of the subjects from the said trustees; and that of the trustees was lis alibi pendens in respect of the action of multiplepoinding. The Sheriff-Substitute ( Dickson), on 30th August 1870, sisted procedure until the issue of the process of multiplepoinding now pending in the Court of Session at the instance of Alexander Dunn's trustees as nominal raisers against William Park and others, in so far as the said action involves the rights of the parties therein to the subjects from which decree of removal is sought in the present action.
On appeal, the Sheriff ( Bell) pronounced this interlocutor:—
“ Glasgow, 7 th November 1870. —Having heard
Page: 170↓
parties’ procurators on the pursuer's appeal, and reviewed the whole precess—Finds that the premises, from which decree of removal is concluded for, now form ex facie a portion of the building known as the Royal Hotel, George Square, Glasgow: Finds that the said Royal Hotel is one of the subjects in medio in the multiplepoinding referred to in the interlocutor appealed against, presently pending in the Court of Session: Finds that the pursuer is admittedly a claimant in said multiplepoinding, and has not yet obtained any deliverance therein to the effect that the premises here in question are not a part of the subject in medio, or any deliverance preferring him to said premises: Finds that the other claimants in the multiplepoinding, who are no parties to this action, are entitled to be heard before the pursuer obtains any such deliverance: Finds that it is inexpedient to proceed further with this process until the way has been cleared as above indicated, else there might be a clashing between the procedure here and in the said multiplepoiuding, or the same matter might be made the subject of investigation simultaneously in both Courts: Therefore adheres to the interlocutor appealed against, with this modification, that it shall be competent for the pursuer to move for the recall of the sist as soon as he has obtained a deliverance in the Court of Session which either withdraws the premises referred to in the summons from the multiplepoinding or prefers the pursuer thereto.” The pursuer appealed.
Lee and Solicitor-General for him.
Balfour in answer.
At advising—
It is admitted that nothing can be done in the multiplepoinding which can affect the subjects dealt with in this action. The history and merits of these actions regarding the succession of William and Alexander Dunn are so familiar to your Lordships in this Division that I have no doubt your Lordships will agree with me that this action, which relates to a subject which belonged to Alexander Dunn only, cannot depend on the result of the multiplepoinding brought by his trustees. In that multiplepoinding the fund in medio can include only the heritable subjects which formerly belonged to William Dunn, Alexander's deathbed deed having been reduced as regards subjects acquired by him otherwise than by succession to his brother William. The pursuer, in whose name his curator has raised the present summons, is infeft in the subjects as heir-at-law of Alexander, and the only interest which the trustees can legitimately have in the action is to see that a proper division is made between their property and that of the pursuer, and that cannot be a matter of difficulty; but, whether it be difficult or not, it cannot be so well decided as by the Judge Ordinary in the present process.
While I cannot say that it is surprising that the Sheriff should have been misled by the ingenuity of the arguments for the respondent, if the case was pleaded before him with the same ability as it has been stated to-day; nevertheless he has gone wrong, and I cannot but think that the attempt to sist this action is unreasonable. I think the questions in dispute do not depend in any way on the issue of the multiplepoinding, and that they ought to be at once and in this action disposed of.
Solicitors: Agents for Pursuer— Murray, Beith, & Murray, W.S.
Agent for Defenders— William Ellis, W.S.