Scottish Court of Session Decisions

Cessio of the estates of David Wilkie Clarke was granted by the Sheriff of Forfarshire and James Constable Robertson, account ant, Dundee, was appointed trustee in the cessio by deliverance dated 7th and extracted 23rd May 1889. On 29th May David Wilkie Clarke granted disposition omnium bonorum in favour of the trustee. On 27th September 1889 the trustee exposed for sale by public roup certain heritable property in Dundee belonging to the cessioned estate. The property was purchased by George Clark, and the subjects were disponed to him by disposition dated 30th November, 2nd, 6th, 7th, and 13th December, and recorded 30th December 1889.

The present action was raised by George Clark against David Wilkie Clarke and his son James Clarke for the purpose of obtaining warrant to eject them from certain premises included in the subjects disponed to him by the trustee in David Wilkie Clarke's cessio.

The defenders averred that the only competent mode in which the trustee on a cessioned estate could sell heritable property belonging to the estate was by making application to the Sheriff under see. 15 of the Act of Sederunt anent Processes of Cessio (22nd December 1882), which provides that “on an application by the trustee or by any creditor, the Sheriff may at any time call a meeting of the creditors to consider and dispose of any matters specified in such application.” Mr Robertson had not conformed to this procedure in selling to the pursuer. He had made no application to the Sheriff under the section quoted, nor had any creditor done so. He had not obtained the authority or consent of the Sheriff, or even of the general body of creditors. The pretended sale to the pursuer and disposition following thereon were therefore null and void.

The defenders pleaded—(1) The pursuer has no title to sue.

On 28th March the Sheriff-Substitute ( Campbell Smith) found that the defences were not relevant, therefore repelled them, and granted warrant of ejection as craved.

The defenders having appealed, the Sheriff ( Comrie Thomson) on 16th April dismissed the appeal and adhered to the interlocutor appealed against.

“ Note.—It appears to me that the defender here is a mere squatter or tenant at will, and that he has set forth no title, and

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that in point of fact he possesses no title to defend this action. If he or others interested have been wronged by the proceedings in the cessio, or by the sale of his heritable property, they have their remedy, but these questions cannot be disposed of in this action.”

The defenders appealed to the Court of Session, and argued—The objection to the pursuer's title could be raised by way of exception—Sheriff Court Act 1887 (40 and 41 Vict. cap. 50), sec. 11. Unless the trustee in a cessio had more extensive powers of sale than either the trustee in a sequestration or the trustee under a voluntary trust-deed, the sale to the pursuer was ultra vires and illegal—Murdoch on Bankruptcy, (5th ed.) p. 288; Crichton v. Bell, June 25, 1833, 11 S. 781; Trusts Act 1867 (30 and 31 Vict. cap. 97,) sec. 3. The only competent mode in which a trustee in a cessio could sell heritable estate was by making application to the Sheriff under sec. 15 of the Act of Sederunt anent Processes of Cessio (22nd December 1882).

At advising—