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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Muirhead v. Gilmour [1909] ScotLR 425 (06 February 1909) URL: http://www.bailii.org/scot/cases/ScotCS/1909/46SLR0425.html Cite as: [1909] SLR 425, [1909] ScotLR 425 |
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Page: 425↓
(Single Bills.)
[Sheriff Court at Kilmarnock.
The Sheriff Courts (Scotland) Act 1907, sec. 5, sub-sec. 5, in a proviso provides—“It shall be competent for either party at the closing of the record, or within six days thereafter, to require the cause to be remitted to the Court of Session in the case of actions ( a) relating to questions of heritable right and title when the value of the subject in dispute exceeds fifty pounds by the year or one thousand pounds in value.…”
The holder of an ex facie absolute disposition of heritable property, granted in security of a loan, having failed to recover payment of his advances, exposed the subjects for sale. They were of the value of upwards of £1000. The debtor, who alleged that the advances for which the disposition was granted had been repaid, brought an action in the Sheriff Court for reconveyance of the subjects, and for interdict against the defender exposing them for sale. The difference between the amount claimed and that admitted to be due was about £10. The defender required the cause to be transmitted to the Court of Session.
Held that as the true matter of dispute was as to the sum of £10 the transmission of the cause was incompetent.
The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, c. 51, sec. 5, sub-sec. 5) is, so far as necessary, quoted supra in rubric.
William Muirhead of Hayocks, Stevenston, brought an action in the Sheriff Court at Kilmarnock against John J. B. Gilmour, solicitor, Stevenston, in which he craved decree (1) that an ex facie absolute disposition of his farm of Hayocks, which he had granted in favour of the defender, was granted in security only of an advance of £10; (2) that the said sum had been repaid; (3) that the defender should be ordained to reconvey the subjects; and (4) that the defender should be interdicted from exposing the subjects for sale.
The circumstances in which the action was brought were as follows:—In June 1906 Muirhead borrowed from Gilmour sums amounting to £170, he granted a bond and disposition over his farm of Hayocks for £160, and he also granted (1) an ex facie absolute disposition of the subjects, and (2) an assignation of certain life policies. (At the date of the loan the subjects, which were valued at about £1500, were burdened to the extent of £1200.) In January 1908 Gilmour, who had failed to recover payment of his advances, surrendered the policies, receiving therefor a sum of £34 odd. Thereafter, in February 1908, he advertised the farm for sale by public roup. Muirhead then brought the present action.
The pursuer averred that as the defender had recovered payment of the £10 by surrendering the policies, he was no longer entitled to retain the subjects disponed in the said disposition, or to expose them for sale. The defender averred that the disposition was in security of all his advances,—including expenses connected therewith—and that unless these were repaid he was entitled to sell the subjects. In the course of proceedings the pursuer deposited a sum of £144 odd, which he alleged was the balance due by him. The difference between the sum admitted by the pursuer to be due and the defender's claim was about £10.
On 27th January the Sheriff-Substitute ( Mackenzie) closed the record; and on the same date the defender required the cause to be remitted to the First Division of the Court of Session in terms of section 5 (5) of the Sheriff Courts (Scotland) Act 1907.
On the case appearing in the Single Bills counsel for the pursuer objected to the competency of the transmission, on the ground that the value of the cause was below the limit stated in the Act.
Counsel for the defender submitted that the question at issue was whether the defender was or was not entitled to sell the said subjects, which were admittedly upwards of £1000 in value.
The action is one at the instance of a proprietor of a certain estate, and is directed against another gentleman who happens to be the holder of an ex facie absolute disposition granted by the pursuer, but who does not plead that the disposition was not in security. It appears that the sum about which the parties are quarrelling amounts to about £10. The security-holder says he is not bound to retransmit, and that he is entitled to sell the subject which he holds in security unless the sums outstanding, amounting to about £10, are repaid him. For the purposes of the argument I shall assume that the defender's contention is right, but it is none the less fantastic to say that the dispute is a question of heritable right within the limit as to value prescribed by the section I have quoted. The true test of the matter is what the parties are fighting about, and that, as I have already indicated, is a sum of £l0. I think the transmission
Page: 426↓
The Court found that the transmission of the cause was incompetent.
Counsel for Pursuer— Lippe. Agent— W. Croft Gray, S.S.C.
Counsel for Defender— W. J. Robertson. Agents— Laing & Motherwell, W.S.
