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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clyne Petitioner [1894] ScotLR 31_692 (5 June 1894)
URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0692.html
Cite as: [1894] ScotLR 31_692, [1894] SLR 31_692

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SCOTTISH_SLR_Court_of_Session

Page: 692↓

Court of Session Inner House First Division.

Tuesday, June 5. 1894.

31 SLR 692

Clyne     Petitioner

Subject_1Trust
Subject_2Trustee
Subject_3Sale of Heritage without Authority of Court
Subject_4Nobile Officium — Petition for Confirmation of Sale.
Facts:

Petition by a testamentary trustee, who had no powers of sale, for confirmation of a sale of heritable property belonging to the trust-estate which he had effected, refused.

Headnote:

This was a petition by James Clyne, sole acting trustee under the trust-disposition and settlement of George Sinclair Waters, wherein he craved the Court to approve, ratify, and confirm the sale of the lands of Thuspister, part of the trust-estate, which had been sold by public auction on 17th November 1893 to Alexander Clyne.

The petition was presented with the consent of all the parties interested in the trust-estate, who were in majority, but there were other beneficiaries who were in minority.

The petition stated that the sale had been carried through by him in ignorance that he had no power of sale, and that he had not yet granted a disposition to the purchaser, and that the latter declined to pay the price until the petitioner could give him a good and unexceptionable title.

At advising—

 Judgment:

Lord President—It is impossible for us to grant the prayer of this petition for the reasons which have been indicated in the course of the argument. But while I think that we should refuse the petition, it may be open to the parties, if they can free themselves of the existing contract, to come back to the Court with an application for authority to sell.

Lord Adam concurred.

Lord M'Laren—I agree with your Lordship that we must refuse the prayer of this petition for the reason that, ex facie of the decree which we are asked to grant, all objections to the sale founded on grounds distinct from the question of power to sell would be excluded. That being so, it appears to me that the confirmation which we are asked to grant would itself be reducible at the instance of a beneficiary who might wish to challenge the sale on extrinsic grounds. I agree with the suggestion made by your Lordship that the only way of working out the remedy desired is probably for the parties to make an application for authority to sell, when it might possibly be given in such terms as would enable the trustee to give a valid and otherwise sufficient title.

Lord Kinnear—I agree with your Lordships. The Court may enlarge the powers of trustees by authorising them to sell, and this appears to be a case in which we should have had little difficulty in giving that authority. But the validity of any

Page: 693↓

sale which they may have carried through in the exercise of their powers may depend upon other considerations. We cannot in this form determine that a sale which trustees have already carried into effect is good or bad.

The Court refused the petition.

 Counsel:

Counsel for Petitioner— Cooper. Agents— Auld & Stewart, S.S.C.

 1894

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URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0692.html