Mrs Mead or Mackenzie and Husband - Brougha - Knight v. William Anderson - Spanki - Robertson [1830] UKHL 4_WS_328

UKHL
Mrs Mead or Mackenzie and Husband - Brougha - Knight v. William Anderson - Spanki - Robertson
[1830] UKHL 4_WS_328
Where a party sold heritable subjects by missives, and the price, payable at a future period, was declared a burden on the subjects: Held (affirming the judgment of the Court of Session) that the price was heritable, and not carried by an English testament.The late Henry Anderson, who resided in England, was one of several pro indiviso proprietors of certain heritable subjects situated in Broughton, immediately adjacent to Edinburgh. In virtue of a power of attorney granted by him and certain other of the proprietors to Mr Thomas Baillie, W. S., that gentleman sold to Mr James Pedie, W.S., on the 2d of November, 1822, by missive letters, their shares of the property, at the price of L.2700. In the offer by Mr Pedie it was stipulated that the price should be “payable as follows, viz. two-thirds thereof two years after Whitsunday next, which is to be my term of entry to the premises, and to bear interest from said term of Whitsunday 1823 at four per cent, and to remain a burden over the property until paid, and the remaining third part of it to be payable at Whitsunday next.” In October, 1823, Mr Anderson died, at which time no farther title had been granted to Mr Pedie. Mr Anderson left a will, in the English form, dated in 1819, in favour of his niece, the appellant, Mrs Mead or Mackenzie. The disposing clause was in these terms:
“I give, devise, and bequeathe, all, and every, my freehold estates in England, or elsewhere,”
and in general his whole property and effects, wherever situated. His brother, the respondent, William Anderson, was his heir at law. A competition then took place between these parties in regard to that part of the price which had been declared a burden on the property, and remained in that situation at the death of Mr Henry Anderson—the appellants contending that it was to be regarded as movable, and so carried by the will, while Mr Anderson maintained

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Mrs Mackenzie and Husband appealed.Appellants. —1. By the sale to Mr Pedie, Mr Henry Anderson was completely divested of the property, which, although not formally, yet substantially, was thenceforth vested in Mr Pedie. The right which now belonged to Mr Anderson was a claim for the price. But such a claim is of a movable, and not of an heritable nature. It is true that Mr Pedie stipulated for indulgence as to the term of payment, and agreed that, for the security of Mr Anderson, the price should remain a burden over the property; but this cannot affect a question of succession arising on the death of Mr Anderson. By the act of converting the heritable into a movable subject, Mr Anderson clearly demonstrated his intention and will that his property was to be considered as movable. The circumstance that Mr Pedie found it inconvenient to pay the price, and offered security, cannot affect the question as to the animus of Mr Anderson. Besides, the price was never made, in proper form, an heritable or real burden.2. Although power was conferred on Mr Baillie to sell the property, and so convert it from an heritable to a movable subject, yet there was none bestowed upon him to defeat that which was the evident intention of Mr Anderson, by taking the price payable in such a form as to alter the order of succession.3. But assuming that there was such a power, still the price was merely created a burden on the property; and there is no authority for holding that such a burden is heritable in a question of succession. Even if it were so, it was transmissible by assignation ; and as the testament gave, bequeathed, and devised

Footnote

* 6 Shaw and Dunlop, 1034.

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Respondent —1. In judging of a question of succession the rule of law is, tempore mortis inspiciendum. The sale was made in November, 1822, and Mr Anderson lived till October, 1823, during which time, and in particular at that latter period, the price remained an heritable burden over the property. A burden of this nature is not one created like an ordinary heritable bond, by advancing money, and so constituting for the first time an heritable right; but is a reservation or continuation of the heritable right created by the infeftment of the seller;—so that, until it be discharged, his right in the property remains as completely heritable as if he had never sold it. But if an heritable bond would have gone to the heir, (which it would undoubtedly have done,) a fortiori must a reserved burden. The argument, therefore, of the appellants, that the property was actually converted into money, is rested on an erroneous assumption.2. Full powers were bestowed on Mr Baillie to dispose of the property as he should see fit; and by the nature of the transaction, the actual and complete transfer of it was postponed for the period stipulated in the missives; and as Mr Anderson lived for nearly twelve months thereafter, he must be presumed to have approved of the transaction.3. It is undoubted law that a burden created over an heritable subject is heritable in a question of succession; and it is equally clear that an heritable right cannot be carried by a testament.Lord Wynford .—My Lords, when this case was argued the other day, I requested your Lordships to allow a little time for the consideration of it; because, although it did not occur to me that there was any great difficulty in it, yet in a case where the question involves a practice which has long existed, and by which real property is governed throughout all Scotland, it appeared to myself, and to the noble Earl * whose assistance I had upon that occasion, that it would be as well to consider what the practice and understanding of the profession had been upon this point. My Lords, this is an action of multiplepoinding—a term which is not very intelligible to English ears, and, perhaps, I may not make myself better understood to some of your Lordships when I say, that it is like a bill of inter-pleader in this country. When a man is called to pay money to different persons, he says, I am ready to pay whoever shall be entitled to it; and as A and B both lay a claim to it, I beg that A and B will settle

Footnote

* The Earl of Raduor.

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“Edinburgh, 2d November, 1822.—Sir, I hereby offer you for the three fourth parts of the property at Broughton, belonging to your clients, Messrs Anderson and Mrs Mackenzie, the sum of L.2700 sterling, payable as follows, viz. two-thirds thereof two years after Whitsunday next, which is to be the term of my entry to the premises, and to bear interest from said term of Whitsunday 1823, at four per cent, and”
—these are the material words—“and to remain a burden over the property till paid; and the remaining third part to be payable at Whitsunday next.” That is all that is material of the letter. Then, in answer to this, a note is written by Mr Baillie to Mr Pedie:—
“Edinburgh, 2d November, 1822.—I accept your offer, before written, on the part of my constituents.”
These notes constitute a conveyance of this property. The testator did not die till after the first instalment, which was payable at Whitsunday, had been actually paid; and, therefore, there is no dispute about that. The dispute is with respect to the remaining three parts, which are a charge, in the words I have read to your Lordships, ‘to remain a burden over the property till paid.’ Now, on the part of the appellants, it is contended that the Court below were wrong in deciding that this is to be considered as heritable property. On the part of the appellants it is contended, that though this, whilst it existed as an estate, was unquestionably heritable property, yet, by the act of sale, a disposition is shown to convert that which was heritable property into movable property, and therefore that it became movable property. On the other hand, it is said, No, it is not converted into movable property; but that, by the operation of the words, (which I have read to your Lordships,) though

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Footnote

* Bell on Completing Titles, 93.

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The House of Lords accordingly “ordered and adjudged that the interlocutors complained of be affirmed.”Appellants' Authorities .—2 Ersk. 3. 17. Forbes, Nov. 1683, (5531.) 2 Bell Com. 9. 10. Wilson, 29th November, 1808. (F. C.) Waugh, 18th February 1676, (5524.) 1 Bell Com. 585. Stewart, 18th May, 1792, (4649.) Winram, 13th February, 1694. (4 Brown, Sup. 53.) Stewart, February, 1615,(5488.) Watson, February 7, 1635, (5489.) M'Nicol, 16th June, 1814. F. C. Lamont, Dec. 4, 1789, (5494.) 1 Bell's Com. 690. Respondent's Authorities.— Respondent's Authorities.— 2 Ersk. 2. 20. 3 Ersk. 8. 20. 3 Stair, 2. 3. 2 Ersk. 2. 5. and 17. Bell on completing Titles, 93. 94. M'Nicol, 31st Jan. 1816. (F. C.) 3 Ersk. 9. 48.Solicitors: J. and A. Smith,— J. Chalmer,—Solicitors.