James Simson v. Alexander M'Millan, and William M'Donald, Writer, his Attorney, Responents [1770] UKHL 2_Paton_227

UKHL
James Simson v. Alexander M'Millan, and William M'Donald, Writer, his Attorney, Responents
[1770] UKHL 2_Paton_227 · 1757-09-23
Circumstances in which a sale of houses by auction was held to be unwarrantable, rigorous, and unfair, from the conduct of the seller, the conduct of the judge, and from the price at which it was sold. Also circumstances in which certain letters proved that an absolute disposition was a right merely in security.The appellant, a merchant in Glasgow, was in the habit of making advances to the respondent, Alexander M'Millan, a herring and provision merchant in Campbelton. These advances amounted at one time to £1277. 9s. 2d.; and various and repeated letters having been sent to the respondent for payment, his brother thereupon became bound along with him by the following letter:—
“23 September 1757. As you have on the 13 instant advanced £1277. 9s. 2d. Sterling to my brother Alexander M'Millan and me, I hereby bind and oblige me to pay the same, with interest, and one half per cent. likewise, for such sums as you shall advance for our joint account in time coming.”
The appellant, notwithstanding this letter of security, did not receive payment of his advances as he wished; and he resorted once more to pressing letters. In some cases, answers came with small remittances, and promises of the balance when his houses in Campbelton and his ship were sold.Again the appellant wrote, stating, “As you don't find any person in your country disposed to purchase your houses, &c. in Campbelton, rather than they should be sold under the value, I believe I had better take a right to them. They may probably become more valuable some

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An absolute disposition and conveyance was granted to the appellant accordingly, but without any back bond, and no writing except the above letter, to shew the nature of the right so acquired. A vendition of the ship was granted, and thereafter sold, and the price, £200, put to the respondent's credit; after which, it appeared by a docqueted account signed between the parties, that the balance was thus reduced to £732. 4s. 1d. To this account there was the following docquet:
“When I dispose of the houses in Campbelton, disponed to me by Alexander M'Millan, the money I receive for them is to be applied to the credit of his brother's account.—(Signed) James Simpson.”
The appellant having failed to obtain payment in any other way, resolved to sell the property in Campbelton, and gave notice of this to Archibald M'Millan, the respondent's brother and surety.The 15th of July was advertised as the day of sale, which was afterwards adjourned to the 15th August.The respondent then, for the first time, hearing of the sale of his houses, wrote the appellant, stating his surprise, and adding:
“If you must and will have your money, please let me know of it, and I will find some friend to advance the sum you have due, rather than to suffer my interest to sell at an undervalue.”
“You have these houses as a security for the balance of accounts I owe you; as such, you ought to give timely notice when you must have your money .” To which the appellant replied, “the strain in which you write surprises me much. You know I have an absolute right to these houses , which I have kept rather too long in my hands,” and the sale must now proceed.The sale proceeded, and the houses were knocked down to one MacCallum at £529.Five months after the sale, the appellant offered the respondent, under form of protest, the balance of his debt, and required him instantly to convey his property, or pay its full value, £800.Upon this being disregarded, the present action was brought before the Court of Session, on the ground of fraud, in as far as the sale had been unfairly hurried over; that it had taken place earlier in the day than the hour advertised,

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But one of the witnesses, MacKinlay, the judge of the roup, was heard, immediately after the sale, to have delivered himself thus to MacCallum:
“You may thank Francis and me for making you a laird in Campbelton; it cost us no little trouble to bring it about.”
Jan. 26, 1769.Feb. 8, 1769.Of this date, the Lords of Session pronounced this interlocutor:
“Find the defender (appellant) liable to account to the pursuer for the within mentioned sum of £800 as at Whitsunday 1705, with annualrent from that term till payment, and decern.”
On reclaiming petition the Court adhered; and, of this date, the Court decerned for £700 of expenses.Against these interlocutors the present appeal was brought.Pleaded for the Appellant .—The grounds of the interlocutor of the 24th Jan. 1769, at pronouncing of which the Court were divided in opinion, are, that the sale made of the respondent's estate was fraudulent and unfair; that the price it was sold for, was under value; and the sale itself a rigorous and unwarrantable proceeding in the circumstances. The appellant submits there was no evidence of fraudulent and unfair dealing, nor any foundation to support that supposition. When the testimony of all the witnesses is weighed with reference to its credibility, the price at which the property was sold at, was fair and reasonable. Nor was the

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If there was fraud on the part of the judge and the purchaser, this is no proof that the appellant was participant in that fraud, or accessory thereto; and, consequently, no ground for making him answerable therefor. And that the value put upon the property by the respondent himself was entirely imaginary.Pleaded for the Respondents .—Though the appellant, in his letter of 3d August 1764, maintained that “he had an absolute right to the property” yet it was clear from his own admissions now, that “it was only a right in security.” This right only gave him liberty to retain possession. There was no power of sale, no notice, no premonition or intimation whatever, and no consent from him. On the coutrary, the moment he heard of it he disapproved, accompanied with proffers of immediate payment. Without charging fraud, therefore, against any particular person in the progress of the sale, it is sufficient to state, that the appellant has sold these subjects without the respondent's consent, and without any legal intimation given him. So that the act of sale itself, not the mode of conducting it, was sufficient wrong to entitle the respondent to make him responsible for its full value.

After hearing counsel, it was

Ordered and adjudged that the appeal be dismissed, and that the interlocutors therein complained of be affirmed.Counsel: For Appellant, J. Montgomery, J. Madocks, John Dalrymple. For Respondents, Al. Wedderburn, H. Dalrymple.Note .—Unreported in Court of Session Reports.