Johnston v. The Standard Property Investment Co., Ltd, and Others. Weatherhead v. Johnston [1908] ScotLR 259 (04 December 1908)

Johnston v. The Standard Property Investment Co., Ltd, and Others. Weatherhead v. Johnston [1908] ScotLR 259 (04 December 1908)

A bondholder selling security subjects in lots has no power, under the Titles to Land Consolidation (Scotland) Act 1868 or otherwise, to create real burdens or allocate feu-duty as between the lots in a manner binding as a real burden inter se. Only the superior can allocate feu-duty. Any purported allocation or burdening by the bondholder in the disposition is legally ineffective to relieve one lot as against the other. The purchaser of a lot advertised as free of feu-duty is not entitled to declarator that the feu-duty forms a real burden on the other lot, nor to relief as against the other lot's owners. The action for such declarator is incompetent and must be dismissed.

Citation
[1908] ScotLR 259
Parties
Pursuer (plaintiff) in Johnston V. the Standard Property Investment Company, Limited and Others; Defender (defendant) in Weatherhead V. Johnston: Charles Johnston; Defender (defendant) in Johnston V. the Standard Property Investment Company, Limited and Others: The Standard Property Investment Company, Limited; Defender (defendant) in Johnston V. the Standard Property Investment Company, Limited and Others; Pursuer (plaintiff) in Earlier Action Against Johnston; Defender (defendant) in Weatherhead V. Johnston: James Campbell Irons; Defender (defendant) in Johnston V. the Standard Property Investment Company, Limited and Others; Pursuer (plaintiff) in Weatherhead V. Johnston: David Weatherhead
Jurisdiction
Scotland
Judgment Date
04 December 1908
Procedural Posture
Civil Appeal (conjoined Appeals) / Inner House, Court of Session (first Division), Final Appellate Judgment
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled; defenders assoilzied (absolved); action dismissed. In Weatherhead v. Johnston, appeal refused on ground of res judicata, action dismissed.
Legal Topics
Heritable Security, Feu Duty, Real Burden, Allocation of Feu Duty, Bondholder Powers, Titles to Land Consolidation (scotland) Act
Property Law Conveyancing Secured Lending Heritable Security Feu Duty Real Burden Allocation of Feu Duty Bondholder Powers +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Charles Johnston

Pursuer (plaintiff) in Johnston V. the Standard Property Investment Company, Limited and Others; Defender (defendant) in Weatherhead V. Johnston

The Standard Property Investment Company, Limited

Defender (defendant) in Johnston V. the Standard Property Investment Company, Limited and Others

James Campbell Irons

Defender (defendant) in Johnston V. the Standard Property Investment Company, Limited and Others; Pursuer (plaintiff) in Earlier Action Against Johnston; Defender (defendant) in Weatherhead V. Johnston

David Weatherhead

Defender (defendant) in Johnston V. the Standard Property Investment Company, Limited and Others; Pursuer (plaintiff) in Weatherhead V. Johnston

Procedural Posture

Civil Appeal (conjoined Appeals) / Inner House, Court of Session (first Division), Final Appellate Judgment

Legal Issues

  1. 1 Whether a bondholder selling security subjects in lots has power to create real burdens as between the lots under the Titles to Land Consolidation (Scotland) Act 1868 and 1869.
  2. 2 Whether the purchaser of a lot advertised as free of feu-duty is entitled to declarator that the feu-duty forms a real burden on the other lot, relieving his lot from liability as against the other lot's owners.
  3. 3 Whether the bondholder's allocation or apportionment of feu-duty in the disposition is legally effective to create a real burden or right of relief.

Ratio Decidendi

A bondholder selling security subjects in lots has no power, under the Titles to Land Consolidation (Scotland) Act 1868 or otherwise, to create real burdens or allocate feu-duty as between the lots in a manner binding as a real burden inter se. Only the superior can allocate feu-duty. Any purported allocation or burdening by the bondholder in the disposition is legally ineffective to relieve one lot as against the other. The purchaser of a lot advertised as free of feu-duty is not entitled to declarator that the feu-duty forms a real burden on the other lot, nor to relief as against the other lot's owners. The action for such declarator is incompetent and must be dismissed.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled; defenders assoilzied (absolved); action dismissed. In Weatherhead v. Johnston, appeal refused on ground of res judicata, action dismissed.

Orders

  • Recall interlocutor of Lord Dundas dated 17 July 1908; assoilzie defenders from conclusions of the summons; dismiss action against Standard Property Investment Company, Limited; decern.
  • Vary interlocutor of Sheriff-Substitute dated 18 December 1908 by deleting 'fourth' and inserting 'third'; affirm interlocutor as varied; dismiss action and decern.