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Cite as: [1837] CS 16_232b

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SCOTTISH_Court_of_Session_Shaw

Page: 232↓

016SS0232b

Begbie

v.

Boyd

No. 53.

Court of Session

1st Division. N

Dec. 15 1837

Ld. Cockburn, Lord Mackenzie, Lord Corehouse, Lord Gillies, Lord President.

Patrick Begbie and Others (Cunningham's Trustees),     Advocators.— Counsel:
Forsyth. William Boyd (John Peacock's Trustee).— Counsel:
Sol.-Gen. Rutherfurd— Pyper.

Subject_Right in Security — Landlord's Hypothec — Mora. — Headnote:

1. The proprietor of a nursery garden granted heritable bonds over it, containing the usual clauses assigning the rents; the creditors were infeft; the first creditor sold the lands under a power of sale in the bond, and they were bought by the second creditor; the price left a balance of the second bond unpaid; prior to the sale, the debtor, as the tenants were in arrear of rent, had laid on a sequestration of the shrubs, plants, roots, &c. in the garden; he did not follow up the sequestration with a sale, for nearly 12 months afterwards (alleging that the shrubs, &c. could not be sooner sold), and after the roup was reported, the purchaser of the lands made a claim for the proceeds of the sale as due to him, both in respect of his right as a heritable creditor, assigned to the rents (and therefore entitled to be preferred to his cedent), and also as a purchaser of the lands to which he alleged the shrubs were accessary as pars soli (and therefore preferable to the seller, especially considering the mora on the part of the seller in following up his sequestration):—Held that “the heritable creditors, in respect of their proceedings under their heritable rights,” were entitled to be preferred to the extent of the balance due on their debt.—2. Question whether shrubs, plants, &c. in a nursery garden fall under hypothec.


Facts:

The late John Peacock, proprietor of the nursery grounds of Stanwell Lodge, let them to his sons C. and J. Peacock, who continued, from year to year, by tacit relocation, at a rent of £112. In 1814, he granted a heritable bond for £600, over these grounds, to James Johnston of Niddry Mains, and in 1817, another heritable bond for £1000, to James Cunningham of Bonnington Mills. Both creditors were duly infeft. The bonds contained the usual clause of assignation to the rents, and they also contained powers of sale. A third heritable bond for £800 was afterwards granted to another creditor. After Whitsunday 1832, Peacock, being in embarrassed circumstances, fell into arrear of interest on Johnston's bond, and he was previously in arrear of interest on the bond to Cunningham. In September 1834, Johnston gave notice, under the bond, that he was to proceed to sell the lands, failing payment, and in April, 1835, they were sold by public auction, under the power of sale, to the trustees of James Cunningham, now deceased, the second heritable creditor, for a price of £2000. This satisfied Johnston's bond, with interest and expenses, which was conveyed to the purchasers; but it left about £100 unpaid of the bond due to Cunningham's trustees, the purchasers.

From the date of Martinmas, 1833, Peacock had not received any rents from his tenants, and, on February 9, 1835, he presented a petition of sequestration to the Sheriff of Edinburghshire, stating that he had “a right of hypothec for the rents over and upon the young trees, shrubs, bushes, stools, plants, bulbous roots, flowers, seeds, hand-glasses, hot-bed frames, and covers, working implements, and tools, utensils, furniture, and whole crop, stocking, goods, and effects, belonging to the said tenants, growing, lying, situated or deposited in or upon the said subjects and others, occupied and possessed by the said tenants.” The petition prayed for warrant to sequestrate these subjects, and to sell them in payment of the rent past due from Martinmas, 1833, to Martinmas, 1834; and to secure them for the current year's rent from Martinmas, 1834, to Martinmas, 1835. On the same day the warrant of sequestration, for payment and security respectively, was granted, and the subjects were inventoried. Warrant of sale, for payment of the rent due at Martinmas, 1834, was obtained on 27th February, 1835, but was not carried into execution. Matters were in this position when the sale of the lands took place in April, under which the purchasers' entry was Whitsunday, 1835, from which date the price bore interest against them. During the first year after the purchase, the purchasers did not make up a title and take infeftment; and the tenants, C. and J. Peacock, remained in the occupation of the grounds, under their right of tacit relocation. The purchasers stated that they had a difficulty in obtaining a clear title, on account of the third heritable bond which remained unpaid.

On November 11, 1835, Peacock applied of new for a warrant of sale, in the process of sequestration at his instance, and obtained a warrant of sale, to pay the rent due at Martinmas, 1834, and Whitsunday, 1835. Between January 28, and February 5, 1836, a sale was carried on under this warrant, the proceeds of which, amounting to £157, were lodged in the hands of the Sheriff-clerk. After the roup was reported, a claim was lodged in the process of sequestration, by the trustees of Cunningham, craving to be preferred on the price. During the competition, Peacock died insolvent, and William Boyd, W.S., his trustee and executor under a private settlement, was sisted in his room. The first purpose of the trust was declared to be, payment of the granter's debts.

The trustees of Cunningham pleaded, 1st, They possessed the twofold right of heritable creditors, and purchasers; either of which was enough to prevail, in competition with the representative of Peacock; and William Boyd, his private trustee and executor, was no more than this, though bound to pay Peacock's debts out of any proceeds recovered by him, just as Peacock himself would have been, if still alive. But as Peacock, in the heritable bonds, of which the two first were vested in the claimants, had expressly assigned his creditors to the rents, for their security, he could not now compete with his own assignees, in claiming these rents, whether he had used a sequestration for recovering them or not. And again, as he was the seller of the lands (through the heritable creditor, Johnston, his mandatary), and the lands were sold with the whole of the sequestrated shrubs, plants, &c., growing on them, and without any notice to the purchasers that these were under sequestration, he could not now compete with the purchasers and carry off subjects bought by them along with the land. 1 2d, Peacock had lost all benefit from his sequestration through the undue mora of allowing nearly twelve months to elapse between the period of obtaining warrant of sale, and carrying the sale into execution. 3. The subjects sold were not liable to hypothec, not being properly moveable, or invecta et illata; and Peacock had no longer any right to them, more than to the lands themselves, after the lands were sold; and, at all events, as the shrubs, &c., had been in the soil till January, 1836, and Peacock's right in the lands came to an end at Whitsunday, 1835, he had no right to carry off the shrubs for prior rents, without paying the corresponding rent, or a sum equivalent to the additional value acquired by them posterior to Whitsunday, 1835.

William Boyd answered, 1st, He was bound by the trust-deed to pay the general creditors of Peacock with any proceeds which he recovered, and was just a trustee for behoof of these creditors. Cunningham's trustees, in the character of heritable creditors, had no right over any moveables on the ground unless they had at least commenced a poinding of the ground or other habile diligence for attaching them before they were carried off. But they used no diligence whatever; and as their debtor, the landlord, Peacock, had sequestrated and sold the moveables, before they appeared, they had no preference on the price, but must rank on it along with the general creditors. 2 Again, in the character of purchasers, Cunningham's trustees acquired none of the moveables, by buying the lands, and had no claim except for the rent of £56 between Whitsunday and Martinmas, l836. Even to that extent, their hypothec was postponed to that of Peacock, the prior landlord, for his prior rent; at least if they were allowed the expense, occasioned by the shrubs continuing on the ground, or the value of the nourishment received by them during the period between Whitsunday, 1835, and the sale. 2d, No undue mora affected the proceedings of Peacock, because it would have required several weeks after the warrant of sale was obtained, before the shrubs, &c., could have been made ready for sale, and by that time the season for selling was past, till the end of autumn or beginning of winter following. And it was only a succession of snow-storms which had delayed the sale

_________________ Footnote _________________

1 Webster, July 13, 1780 (2902.)

2 Hay, July 7, 1824 (ante, III., 223; or new ed. 157.)
after Martinmas, 1830, till January following. 3d, The subjects were reared in the nursery garden, just as the crop proper to the ground; and though the time might vary during which the plants or shrubs might be allowed to remain, they were separable annually if necessary, and were in practice viewed as moveables, not passing with the lands, but the mere stocking of the tenant.

The Sheriff dismissed the claim of Cunningham's trustees, and granted warrant to William Boyd to uplift the proceeds of the sale. Cunningham's trustees brought an advocation, and the Lord Ordinary “sustained the reasons of advocation, advocated the cause, recalled the interlocutors complained of; preferred the advocators to the fund in medio, amounting to £157, 9s. 10d.: Granted warrant to, authorized, and ordained the Sheriff-clerk of the shire of Edinburgh to pay over the said fund to the advocators, in terms of their original claim before the Sheriff, and decerned; and found the advocators entitled to expenses incurred by them in this and in the Sheriff-court.” *

William Boyd reclaimed, and the Court ordered minutes of debate, after considering which the following opinions were delivered:—

Lord Mackenzie.—I feel a good deal of difficulty in this case, but I think the interlocutor is right. It is not easy to support the plea of the landlord, Peacock (or his representative), against the advocators. Peacock sold the lands themselves out and out. The act of the heritable creditor, selling under the power of sale granted by Peacock, was, in law, the act of Peacock himself. The purchasers bought the lands, knowing nothing of the sequestration which Peacock had executed, but which he had then allowed to stand over for some time, and which afterwards lay by so long before he followed it up by a sale. When the purchasers of

_________________ Footnote _________________

* “ Note.—The leading facts on which the Lord Ordinary proceeds, are, first, That John Peacock, senior, the original landlord, was entitled to a rent of £56 half-yearly, from his sons, the tenants of the nursery. 2d, That on 9th February, 1835, he obtained sequestration in payment of the rent due at Martinmas, 1834, and in security of that which was to become due at Whitsunday, 1835. 3d, That on 27th February, 1835, he obtained a warrant to sell, but did not avail himself of that warrant. 4th, That on 22d April, 1835, the lands were sold under an heritable bond by a creditor of Peacock to the advocators, whose term of entry was declared to be Whitsunday, 1835. 5th, That these purchasers, not having got a title completed, could not remove the tenants, even had they wished it, but possessed through these tenants, who continued, as they had done, for sometime before, on tacit relocation. 6th, That, though the lands were thus sold, and by a party acting under the authority of the former landlord to strangers, who had to pay interest from and after Whitsunday, 1835, this former landlord, who had done nothing under his original warrant of sale in February, applied for, and in the absence of the purchasers, obtained another warrant of sale on 16th November, 1835; and in the end of January and beginning of February, 1836, sold the whole stock of nursery plants, &c., the price of which forms the subject of this competition.

“The purchasers claim the proceeds of the sale, in which claim they are only opposed by the private trustee of the party whose creditor had assigned the rents to them subsequently to Whitsunday, 1835. The Sheriff preferred the trustee, in which result the Lord Ordinary cannot concur.”
the lands saw these shrubs and plants growing on the lands, and knew nothing of this alleged right of Peacock, I do not think that he, or his representative, can claim the price of these shrubs, in competition with the purchasers. And I consider the respondent, William Boyd, who is the gratuitous trust-disponee of Peacock under his settlement, to be in no better situation than Peacock himself. The purchasers bought the lands with reference to the stock of plants on them; and without meaning to decide that these plants would pass as pars soli, and that they were not moveables, as to which I reserve my opinion, I still hold that the objection of undue delay applies against Peacock the landlord with peculiar force, when stated by the purchasers, who would be manifestly prejudiced if Peacock's after-proceedings in the sequestration could be made available against them.

Lord Corehouse.—I feel considerable difficulty in extricating the rights of these parties. The advocators, Cunningham's trustees, possess a twofold right, first as heritable creditors, with an assignation to the rents, and second as purchasers. Had there been no intimation of the assignation of the rents, any of the creditors of Peacock might have come forward and attached the rents. But that is not the species facti here. Peacock assigned the rents to the heritable creditors, and, after having done so, he now comes forward to claim these rents in competition with his own assignees. For I bold the respondent, Boyd, who has merely a gratuitous right as executor under Peacock's settlement, to be unable to plead higher than Peacock himself could have done if alive. I do not see how such a claim by Peacock could be sustained, independently of the rights acquired by the advocators as purchasers, and the mora which occurred on the part of Peacock in bringing the sequestrated effects to sale. In regard to the right acquired by the purchaser of the lands, if it were necessary to decide whether the plants, roots, shrubs, &c. went with the lands as pars soli, or whether they were moveable and liable to hypothec, I should feel much difficulty in deciding. If these shrubs, &c. were not of the class of growing trees, they were at least a very peculiar crop. They were not of that species of crop which is annually separated from the ground. Many of the plants sequestrated might be several years, perhaps four, five, or even ten years in the ground together. Rose-trees, for example, or bulbous-roots may be continued in the ground, for the purposes of a nursery-gardener, for a series of years together, according to one mode of culture, though I believe it is not the most approved. But I doubt whether subjects of that nature can be viewed as proper invecta et illata, or are liable to hypothec. I wish not to decide that question, and I consider that, without deciding it, the interlocutor may be adhered to, in the circumstances of the case, and particularly with reference to the right of the advocators as heritable creditors duly assigned to the rents, who are hero in a question of competition with their cedent.

Lord Gillies.—I concur. I do not wish to decide whether the subjects were liable to hypothec or not; and I think that, in the circumstances of this case, and especially in respect of the right of the advocators as heritable creditors, duly assigned to the rents, who must prevail in competition with their cedent or his representative, there is enough to warrant us in adhering to the interlocutor of the Lord Ordinary.

Lord President concurred.

The Court pronounced this interlocutor:—“Find the heritable creditors preferable, in respect of their proceedings under their heritable right, and prefer them accordingly to the extent of the balance due on their debt, and to that extent, adhere to the interlocutor of the Lord Ordinary, and refuse the prayer of the reclaiming note; recall the said interlocutor, in so far as it finds the advocators entitled to expenses; find no expenses due, and remit to the Lord Ordinary to proceed farther in the cause as shall be just and consistent with this interlocutor.”

Solicitors: J. Chalmers— A. Boyd, W.S.—Agents.

 SS 16 SS 232 1837

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