Scottish Court of Session Decisions

Mrs Margaret Kilgour or Black, wife of Roger Black, solicitor, Kirkcaldy, was proprietrix of two-fifths pro indiviso of the lands of Bruntshiels, in the county of Fife. In 1881 Mrs Black borrowed from Robert Schaw, Edinburgh, a sum of £1600, and in security of the loan she, with the consent of her husband, granted a bond and disposition in security over her share of the pro indiviso estate. The bond contained the usual clauses, including a clause of assignation of rents. The lands of Bruntshiels were divided into fourteen enclosures, which were let as grass parks. The said parks were rouped for the year 1888 in common form, and it was provided by the articles of roup that the rents were to be paid to Mr John Inglis of Colluthie, one of the pro indiviso proprietors, for behoof of himself and the other proprietors of Bruntshiels.

In July 1888 Schaw raised the present action of maills and duties against Mr and Mrs Black, calling also as defenders the other two pro indiviso proprietors of Bruntshiels, and also the tenants of the grass parks. He averred that the £1600 was due and resting-owing, and that the interest from the term of Martinmas was also unpaid. The only compearing defenders were Mr and Mrs Black, who admitted that the money, principal and interest, was due, but averred that the tenants of the parks were in no way bound to pay any portions of the grass rents to them, and that they were only payable to Mr Inglis of Colluthie for behoof of all the joint proprietors.

The pursuer pleaded that as he was a heritable

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creditor infeft in the subjects he was entitled in default of payment to enter into possession of the lands, and to uplift the rents, and that he was entitled to decree of maills and duties.

The defenders pleaded, inter alia—“(1) No title to sue; and (2) that the action was incompetent.”

On 16th November 1888 the Lord Ordinary ( Kinnear) sustained the defenders' second plea-in-law and dismissed the action.

The pursuer reclaimed, and argued that the Lord Ordinary's judgment had proceeded upon a mistaken view of the nature of Mrs Black's right; hers was not a joint right, but a right in common, which was practically the same as the right of tenants-in-common in the law of England—Williams on Real Property, p. 162. The distinction in the law of Scotland between joint property and property in common was not clearly laid down either in the text-books or in the decisions. As an instance of joint property, the right possessed by one of a body of trustees was the simplest example; while, on the other hand, the case of heirs-portioners best illustrated the position of the holders of a right in common. Mrs Black's right here, though not strictly speaking an heir-portioner right, was analogous to it, as she could sell, alienate, or burden her pro indiviso share. On the distinction between joint and common rights—2 Bell's Com. p. 544; Ersk. Inst. ii. 6, 53; Bell's Prin., sec. 1072; Rankine on Land Ownership, 485. As to the powers of pro indiviso proprietors, the result of the decisions was that in all questions between the said proprietors and third parties in matters relating to the common property the consent of all the pro indiviso proprietors was necessary, as, for example, in the case of suing a removing from the common property— Grozier v. Downie, June 13, 1871, 9 Macph. 826; on suing a declaration of marches— Young v. Tennant & Company, June 11, 1860, 22 D. 1415. When as in the case of questions in which the rights of the pro indiviso proprietors only were at issue, greater laxity in the matter of consents prevailed— Stewart v. Wand, February 5, 1842, 4 D. 622; Johnstone v. Crawfurd, July 3, 1855, 17 D. 1023; Monson, December 11, 1857, 20 D. 276; Lawson v. Leith and Newcastle Steam Packet Company, November 26, 1850, 13 D. 175. II. Personal bar—The present defence, while it might have been formidable in the mouths of the tenants or of the other pro indiviso proprietors, could not be listened to from the present defenders, who being the pursuer's authors and the debtors in the bond, were barred from calling in question the pursuer's title. They had by the bond assigned the rents, and could not now be heard to plead that that assignation was invalid. Neither the tenants nor the other pro indiviso proprietors were in any way opposing what the pursuer here sought to obtain.

Argued for the defenders Mr and Mrs Black—The title of the pursuers was to a pro indiviso property, and an action of maills and duties was not competent to parties holding, like the defenders, a joint right. If so, it was not competent to the pursuer, who was merely their assignee, and whose right could not be higher than that of the cedent. The case was ruled by Cargill v. Muir, January 21, 1837, 15 S. 408, and the opinion of the Lord Ordinary in that case exactly defined the nature both of the defenders' and of the pursuer's rights in the present case. Here it was not only the property which was held pro indiviso, but also the right— M'Neight v. Lockhart, November 30, 1843, 6 D. 128. The defence here stated was competent either to the tenants or to any of the pro indiviso proprietors, and it was not to be assumed that because no defences were put in by any of the other defenders that they on that account were to be held as consenters to the present action.