Kelly's Trustee v. Moncreiff's Trustee [1920] ScotLR 366 (20 March 1920)

Kelly's Trustee v. Moncreiff's Trustee [1920] ScotLR 366 (20 March 1920)

The bankrupt, Lord Moncreiff, was in lawful occupancy of the premises by arrangement with the owners and held a beneficial interest as partner and trustee. His moveables on the ground are liable to poinding of the ground at the instance of the heritable creditor, as the law attaches goods of owners or lawful occupants, not merely formal tenants.

Citation
[1920] ScotLR 366
Parties
Pursuer: John Craigen, advocate, Aberdeen, sole surviving trustee acting under an indenture prior to marriage of John Davidson Kelly and Annie Barnes; Defenders: Braidwood & Moncreiff, Stanley House School, Bridge of Allan, and Thomas Braidwood and Lord Moncreiff, the partners of the firm of Braidwood & Moncreiff, as trustees for the firm and as individuals; Minuter/respondent: John Stuart Gowans, C. A., trustee on the sequestrated estates of Lord Moncreiff
Jurisdiction
Scotland
Judgment Date
20 March 1920
Procedural Posture
Appeal / Inner House, First Division, Court of Session, Post Sheriff Court Interlocutors
Outcome
Appeal allowed; interlocutors of the Sheriffs recalled.
Legal Topics
Heritable Security, Poinding of the Ground, Attachment of Moveables, Trusts and Beneficial Ownership, Lawful Occupancy
Property Law Insolvency Law Partnership Law Heritable Security Poinding of the Ground Attachment of Moveables Trusts and Beneficial Ownership Lawful Occupancy

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Parties

John Craigen, advocate, Aberdeen, sole surviving trustee acting under an indenture prior to marriage of John Davidson Kelly and Annie Barnes

Pursuer

Braidwood & Moncreiff, Stanley House School, Bridge of Allan, and Thomas Braidwood and Lord Moncreiff, the partners of the firm of Braidwood & Moncreiff, as trustees for the firm and as individuals

Defenders

John Stuart Gowans, C. A., trustee on the sequestrated estates of Lord Moncreiff

Minuter/respondent

Procedural Posture

Appeal / Inner House, First Division, Court of Session, Post Sheriff Court Interlocutors

Legal Issues

  1. 1 Whether moveables belonging to Lord Moncreiff as an individual are liable to poinding of the ground by a heritable creditor
  2. 2 Whether lawful occupancy or beneficial ownership suffices for liability to diligence

Ratio Decidendi

The bankrupt, Lord Moncreiff, was in lawful occupancy of the premises by arrangement with the owners and held a beneficial interest as partner and trustee. His moveables on the ground are liable to poinding of the ground at the instance of the heritable creditor, as the law attaches goods of owners or lawful occupants, not merely formal tenants.

Court Disposition

Appeal allowed; interlocutors of the Sheriffs recalled.

Orders

  • Found that the furniture of the bankrupt in Stanley House is liable to the pursuer's diligence.
  • Remitted the cause to the Sheriff-Substitute to proceed as accords.