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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Abbott v. Mitchell [1870] ScotLR 7_160 (10 December 1870)
URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0160.html
Cite as: [1870] SLR 7_160, [1870] ScotLR 7_160

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SCOTTISH_SLR_Court_of_Session

Page: 160↓

Court of Session Inner House First Division.

Friday, December 10 1870.

7 SLR 160

Abbott

v.

Mitchell

Subject_1Lease — Bankrupt — Title to Sue — Proof.
Facts:

A granted an ex facie absolute disposition of certain subjects to B & Co.; but by a back-bond it was declared that they held it only in security of sums due to them by A. The disposition was recorded, but not the back-bond, and A continued in occupation of the subjects. The day before B. & Co. stopped payment, and shortly before his own bankruptcy, A granted a lease of part of the subjects to his son. The son's possession being challenged, he brought a declarator of the validity of his lease. Held possession of the lease gave him a title to sue; and a proof was allowed both parties of their averments.

Headnote:

In 1861 William Abbott, spirit merchant in Glasgow, disponed to William Robertson, furrier, certain heritable subjects in London Street, Glasgow. But, by a back-bond and declaration of trust, granted on the same day by Robertson to Abbott, it was declared that Robertson held these subjects only in security of relief of certain obligations incurred by him for Abbott; and binding Robertson on receiving such relief to denude in favour of Abbott and his foresaids. The disposition and the back-bond were duly recorded; as also a disposition granted in December 1862 by Robertson and

Page: 161↓

Abbott, in which, on the narrative of the above mentioned disposition and back-bond, and the relief of the obligations that had been incurred, Abbott required Robertson to denude himself of these subjects, and convey or concur in conveying them to Weir Brothers & Company, wine and spirit merchants in Glasgow, and the individual partners and the survivor and his heirs in trust for the company's behoof, and to their or his assignees. This disposition contained an assignation to the rents. Abbott continued in possession of the subjects; and he asserted that, notwithstanding the disposition, he exercised all the rights of a proprietor,— employed a factor to uplift the rents, granted leases, and settled claims against the property. The defender denied the validity of these leases, averring that the lease in dispute was granted by Abbott though aware that his bankruptcy was inevitable; and that his occupancy was only at the company's pleasure.

By an unrecorded back-bond of the same date as his disposition it was declared that Weir Brothers & Company only held these subjects in security of a sum due to them for goods and cash advanced to Abbott; and they were bound to denude in his favour on repayment. If, however, payment was not made three months after a demand for it, the company were authorised to sell the subjects. By a subsequent disposition, duly recorded, the company, with the concurrence of Robertson and Abbott, conveyed the subjects to the individual partners of the company, nominatim, in trust for the company's behoof; and by back letter of the same date the individual partners declared that they held the subjects only in security for payment by Abbott of the sum due by him to the company.

On 19th March 1867 Abbott let to his son part of the subjects for ten years at a rent of £75; and his son entered into possession in virtue of this lease. Weir Brothers & Company having stopped payment the following day, their estates were sequestrated on the 3d of April following; and Mr Moncrieff Mitchell, C.A., Glasgow was elected trustee. Abbott's estates were sequestrated on the 20th May thereafter, and his trustee raised an action in the Sheriff-court of Lanarkshire to have the lease declared invalid. Mr Mitchell having applied to the Sheriff for warrant to eject Abbott junior from the shop, he raised this action of declarator, to have it found that the lease under which he occupied was a good and valid lease. A great number of averments as to the rights and actings of the respective parties was made upon record. The first plea-in-law of the defender was a denial of the pursuer's title to sue. The Lord Ordinary ( Manor) repelled this plea; and the defender, having obtained leave, reclaimed, against this interlocutor.

Scott and J. M'Laren for him.

Gifford and Mair in answer.

At advising—

 Judgment:

Lord President considered that the existence of the lease and the possession of it by the pursuer gave him a title to sue, and an interest to have the lease declared valid. Whether or not he might succeed in getting it declared valid was a question on the merits of the case upon which it would be premature to pronounce any opinion. Before his title to prevail could be held good certain of the facts alleged must be proved. There were many allegations on both sides,—the defender averred that the pursuer's lease was fraudulently gained, and flowed a non habente protestatem. That must be ascertained. But as the possession of the lease was sufficient to give the pursuer a title to sue, he was for recalling the Lord Ordinary's interlocutor, sustaining the pursuer's title to sue, allowing both parties a proof of their averments, and meanwhile reserving the question of expenses.

Lords Deas and Ardmillan concurred.

Lord Kinloch—The present is an action of declarator, raised for the purpose of obtaining a judgment of the Court declaring the validity of a lease for ten years of certain subjects in London Street, Glasgow, said to have been granted to the pursuer by William Abbot senior on 19th March 1867; and “that in virtue thereof the pursuer is entitled to the undisturbed possession, use, and enjoyment of the premises, during the endurance of the said lease.”

So far as regards the title to sue such an action, in the proper legal sense of that phrase, I consider it to be sufficiently afforded by the production or averment of the lease sought to be declared valid. Every one who lays before the Court a written title to property, whether by disposition or lease, is entitled, if he can show a sufficient interest, to ask the judgment of the Court that it is a legal and effectual instrument against those maintaining the contrary. To say that such an one must establish the validity of the right before his title to sue can be sustained, is, as I think, to ignore the distinction between the title to sue, and the merits of the case sued, and to throw confusion into legal phraseology.

In the present case the first plea in defence is, “No title to sue.” The Lord Ordinary repels this plea. And in so far as by this he merely sustains the title to sue in the sense I have now explained, his interlocutor is not open to impeachment.

But the terms of his interlocutor in other respects awake a strong suspicion, indeed show conclusively to my apprehension, that his Lordship intended to go much further than this, and not merely to sustain the title to sue, but to pronounce for the validity of the lease considered in itself, reserving to the defender to make good a challenge of it on some extrinsic ground. At least, the wording of the interlocutor is such as to make it proper for the Court to take steps for preventing any possible error in this direction.

I think it plain that before pronouncing on the validity of this lease one way or other, there must be proof of the facts which are in issue between the parties. The defender contended that, assuming the facts to be as stated by the pursuer, there were legal grounds on which to hold the lease invalid. I am not prepared to adopt this conclusion. And I see at least this very clearly, that according as the facts come out one way or other, a very different case will be presented for the determination of the Court. The defender reached his conclusion by a very summary and shorthand process. He reasoned thus—The granter of the lease, William Abbott senior, had previously to its being granted divested himself of the subjects by an absolute disposition in favour of Weir Brothers & Co., who were infeft, or in an equivalent position, by recording the disposition. This ex facie absolute disposition was declared by a back-bond to be a mere deed in security of a money advance; but the back-bond was not recorded, so that Weir Brothers & Co. remained absolute proprietors on the face of

Page: 162↓

the records. The defender, as trustee in then-sequestration, came into their shoes as such; and in a question with him the lease, being granted by a person not the proprietor of the subjects, is null and void. Such is the defender's argument. But independently of its involving on its face very nice and delicate questions, not rashly to be encountered, there is to be considered the answer made by the pursuer, that although the back-bond was not recorded, William Abbott senior was left by Weir Brothers & Co., his creditors, in the entire administration of the subjects, drawing the rents, dealing with the tenants, and letting leases with the entire concurrence and consent of Weir Brothers; in short, was placed by them entirely in the same position with any proprietor who has merely granted an heritable bond over his property. The lease granted by him to the pursuer, and which was granted before any sequestration issued of the estates of Weir Brothers & Co., the pursuer contends to be as valid as if granted by a proprietor against whom nothing can be said but that lie had executed a disposition in security over his property. I pronounce no opinion on these rival contentions. I only say that before coming to a determination I desire to see the true state of the facts expiscated and established.

It must not be forgotten that besides maintaining that the lease is intrinsically null, the defender objects to it on the head of fraud, and as invalid, under the Act 1621, cap 18, in a question with prior creditors of Abbott senior. Any one of the grounds of defence may, if sustained, be sufficient to dispose of the case.

On the whole matter I consider it to be the only safe or judicious course to allow the parties a proof before answer of their respective averments; the case to be thereafter disposed of according to its true merits.

I do not think it expedient to have two or more proofs in the case; but to have one proof for all, and then to pronounce judgment.

 Counsel:

Agent for Pursuer— John Galletly, S.S.C.

Agent for Defender— A. Kelly Morrison, S.S.C.

 1869–1870

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