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DECIDED IN

THE SUPREME COURTS OF SCOTLAND,

AND IN

TIIE HOUSE OF LORDS ON APPEAL FROM SCOTLAND:

BY

[HOUSE OF LORDS, ETC.)

GEO. DINGWALL FORDYCE, Esq. ADVOCATE;

(COURT OF SESSION)
W. GILLIES TYTLER, & FREDERICK HALLARD, EsqRs. ADVOCATES:

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REPORTS OF CASES

DECIDED IN

THE COURT OF SESSION, &c.

13th November 1849.

First Division.
No. 1.-CHARLES STEWART, Complainer, v. JAMES

KIRKALDY, Respondent.
Curator Bonis-Heritable Security--Opinion, That a curator

bonis who is authorized by the Court" to borrow money upon the security of the estate of his ward, and to grunt the proper securities therefor," is not entitled to grant a bond and disposition in security containing a power of sale.

This was an application at the instance of the judicial factor on the sequestrated estate of Morar, for interdict against a sale of that estate proposed to be carried through by the respondent, an heritable creditor, under a power of sale in his bond and disposition in security.

The estate belonged to James Macdonald, a lunatic. His curator bonis, Chisholm, for the purpose of paying off debts, applied to the Court for leave to borrow money on the security of it. The petition stated, that the curator “ does not here want to alienate the lunatic's estate, but to protect it from the operation of diligence, and the accumulation of burdens, that would otherwise lead to its eviction.” The Court authorized the curator "to borrow money upon security of the said estate of Morar, and to grant the proper securities therefor.”

Under these powers, the curator borrowed money from Mrs. Anne Isabella Macdonald and others, in security of which he granted a bond and disposition in security containing the following power of sale :

“Declaring also, as it is hereby expressly provided and declared, that if the said James Macdonald, or his foresaids, shall fail to make payment of the sums that shall be due, by the personal obligation before written, within six months after a demand of payment is intimated ..... then and in that case it shall be lawful to, and in the power of, the said Mrs. Anne Isabella Macdonald, &c. (the creditors), immediately after the expiration of the said six months, and without any other intimation or pro. cess of law for that effect, to sell and dispose, in whole or in lots, of the foresaid lands, teinds, and others before disponed ..... and for that end to enter into articles of roup, grant dispositions, containing procuratory of resignation, assignation to the writs and evidents, and to the rents and duties, precept of sasine, and a clause binding the said James Macdonald and his heirs in absolute warrandice of such dispositions, and obliging him to corroborate and confirm the same, and to grant all other deeds and securities requisite and necessary, by the laws of Scotland, for rendering the said sale or sales effectual, in the

SCOTTISH JURIST.

same manner, and as amply, in every respect, as the said James Macdonald could do himself.”

The respondent obtained an assignation of this title, and was proceeding to carry through a sale under the above power, when the complainer presented this application, praying the Court “to suspend the proceedings complained of, and interdict the said respondent from proceeding with his threatened sale of the said estate of Morar, in virtue of the alleged powers contained in the bond and disposition in security in his favour, as advertised to take place on the 29th of August next, and generally, from taking any steps with a view to the carrying out of the alleged power of sale; or to do otherwise,” &c.

The complainer pleaded, inter aliaA curator bonis who has obtained authority to contract a loan, and to grant a security over the heritable property of the lunatic under his charge, is not entitled, without the express leave and sanction of the Court, to insert therein a power of sale-a power which the Court will not grant with reference to the property of a lunatic, except on a formal and direct application for such power, and after satisfactory evidence has been adduced that a sale is absolutely necessary.

The respondent pleadedThe curator bonis having been authorized by the Court “to borrow money upon security of the said estate of Morar, and to grant the proper securities therefor," was entitled to grant a bond and disposition in security containing a power of sale, such being the universal form of borrowing money adopted in modern conveyancing, and the only form according to which creditors would lend.

The Lord Ordinary passed the note, and continued the interdict previously granted ad interim.

The respondent reclaimed.

Lord Mackenzie. - Is there any instance of a purchaser accepting such a title ?

Lord Jeffrey.-What is the state of practice? There is no doubt the Court can grant a power of sale. But is there any case in which such a power has been construed out of a warrant like this? It may be well to examine into this, if the case should be proceeded in on a passed note.

The Court adhered. Lord Ordinary, Robertson.-Act. Dean of Faculty (M'Neill), E. S. Gordon ; Sir Charles Gordon and Co. W.S. Agents.--. Marshall, P. Fraser ; James L. Hill, W.S. Ageni.-L. Clerk. F.H.

VOL. XXII.-No. I.

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