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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson's Trustees v Monteith's Trustee [1835] CA 13_411 (6 February 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0411.html
Cite as: [1835] CA 13_411

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SCOTTISH_Shaw_Court_of_Session

Page: 411

Thomson's Trustees

v.

Monteith's Trustee
No. 127.

Court of Session

1st Division B.

Feb. 6 1835

Ld. Corehouse.

John Monteith and Others ( Thomson's Trustees),     Raisers and Claimants.— Monteith. James and Adam Monteith's Trustee,     Claimants.

Subject_Sale—Acquiescence—Reparation.—

A party sold a heritable subject by missives; but the purchaser having failed, without implementing the purchase, the seller wrote to the trustee on his sequestrated estate, requiring to know whether he was disposed to take the subject; and the trustee having notified that the purchase was abandoned, the seller, without farther consulting the trustee, and without applying for judicial sanction, resold the subject by public roup at a loss—Held, that the seller had acquiesced in the abandonment, and had no claim for damages against the bankrupt's estate for non-implement of the sale.

The late Robert Thomson, by his trust-disposition, conveyed certain subjects in Hutcheson-street, of Glasgow, to his trustees. On 15th March, 1824, Robert and Adam Monteith, two of the truster's grandchildren, who were entitled to a share in his succession under the trust-deed, addressed the following letter to the trustees:—“We agree to purchase from you the whole property in Hutcheson-street, belonging to Mr Thomson's estate, at the price of £5300 Sterling, the price to be payable at Whitsunday next, when our entry is to commence.” The trustees accepted the offer; and the purchasers, on 15th May following, intimated that it had been made for behoof of four of the grandchildren of the truster. The price was never paid. In July, 1826, Robert and Adam Monteith became bankrupt, and Thomson's trustees wrote to the trustees on their respective sequestrated estates in these terms:—“On the 15th March, 1824, Adam Monteith, along with Robert Monteith, his brother, entered into missives of sale with the trustees of the late Mr Robert Thomson, senior, by which the trustees sold to them certain subjects in Hutcheson-street, at the price of £5800, payable at Whitsunday, 1824. This purchase has never been implemented, and both Robert Monteith and Adam Monteith being now bankrupt, the trustees of the late Mr Thomson are desirous to know whether the creditors are disposed to take the property, in terms of the missives. You are the trustee upon Mr Adam Monteith's estate, and therefore it will be necessary that you consult the commissioners as to the matter, and let me know their and your determination. I have written Mr Paul, the trustee on Mr Robert Monteith's estate, to the same effect.”

The trustees on the estates of Robert and Adam Monteith intimated their resolution to abandon the purchase. Thomson's trustees proceeded to sell the subjects in Hutcheson-street by public roup, in November, 1827, and obtained a price of £4116, being £1196 less than the price agreed to be paid by the missives of Robert and Adam Monteith. They adopted these steps without craving any judicial sanction for their proceedings, or making the trustees of Robert and Adam Monteith parties.

In a multiplepoinding subsequently brought by Thomson's trustees, for the purpose of dividing the residue of Thomson's trust-estate, claims were made by the trustees of Robert and Adam Monteith, on account of the shares destined to them. Thomson's trustees claimed a right of retention of these shares, on account of a claim of damages for the non-implement of the sale of the trust-subjects on 15th March, 1824, to Robert and Adam Monteith, which had rendered a re-sale necessary, at a loss of £1196 to the trust. The trustees on the sequestrated estates of Robert and Adam Monteith resisted this claim, and contended that no damages were due, in respect that Thomson's trustees had asked whether they were to take the property, and on its abandonment being notified, had proceeded to sell it without craving judicial authority, or even making the creditors of Robert and Adam Monteith parties to their proceedings. They could only have done so on the footing that they had acquiesced in the abandonment made by the trustees of Robert and Adam Monteith, and had resumed the property to themselves; and that the whole responsibility of these proceedings affected their interests alone. They would have been entitled to any gain made upon a re-sale, and must bear any loss.

The Lord Ordinary “repelled the claims of Robert Thomson's trustees, against the estate of Robert and Adam Monteith, for damages on account of the trustees of the said Robert and Adam Monteith declining to implement the bargain for the property in Hutcheson-street, concluded by the missives which passed between Thomson's trustees and the said Adam and Robert Monteith, in March, 1824.” *

Thomson's trustees reclaimed.

_________________ Footnote _________________

*Note.—There was a concluded sale of the property in Hutcheson-street by the missives in March, 1824, Robert and Adam Monteith being the purchasers. On the 15th of May following, it was explained to Thomson's trustees that the purchase was made for behoof of the truster's grandchildren, an arrangement to which Thomson's trustees had no right or interest to object, because it did not liberate Robert or Adam Monteith from their responsibility as purchasers. On the bankruptcy of those individuals, the trustees on the sequestrated estates notified to Thomson's trustees, on the part of the creditors. that they abandoned the purchase. Thomson's trustees acquiesced in that abandonment, and, without consulting the creditors, the bankrupts, or any one else, proceeded, of their own authority, to manage the property, and to dispose of it by auction, the upset price being greatly less than that at which it had been sold to Robert and Adam Monteith. By doing so, they virtually consented that the sale should be annulled. If they had meant to found upon it as a subsisting contract, to the effect of enforcing a claim of damages, it was their duty to have notified this distinctly to the trustees for the creditors, and to have taken no step as to the disposal of the property, without the consent of the creditors, and the sanction of judicial authority.”

The Court adhered, reserving expenses.

Solicitors: W. A. G. and R. Ellis, W.S.—Agents.

SS 13 SS 411 1835


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URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0411.html