GORDON MALCOLM MACLURE, TRUSTEE IN SEQUESTRATED ESTATE OF SALLY J STEWART v. SALLY J STEWART & STEVEN WILSON [2011] ScotSC 150 (13 September 2011)

GORDON MALCOLM MACLURE, TRUSTEE IN SEQUESTRATED ESTATE OF SALLY J STEWART v. SALLY J STEWART & STEVEN WILSON [2011] ScotSC 150 (13 September 2011)

Orders for possession and ejection by a trustee in bankruptcy against a co-proprietor in a pro indiviso property are either incompetent or serve no useful purpose, as both proprietors retain equal rights to occupy until the property is sold.

Citation
[2011] ScotSC 150
Parties
Pursuer: Gordon Malcolm Maclure, Trustee in the Sequestrated Estate of Sally J Stewart; First Defender: Sally J Stewart; Second Defender: Steven Wilson
Jurisdiction
Scotland
Judgment Date
13 September 2011
Procedural Posture
Action of Division and Sale / Application for Orders for Possession and Ejection After Decree for Division and Sale
Outcome
Orders for possession and ejection refused; orders for division and sale granted.
Legal Topics
Pro Indiviso Ownership, Trustee Powers in Sequestration, Ejection of Co Proprietor, Division and Sale of Heritable Property
Property Law Bankruptcy Law Pro Indiviso Ownership Trustee Powers in Sequestration Ejection of Co Proprietor Division and Sale of Heritable Property

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Parties

Gordon Malcolm Maclure, Trustee in the Sequestrated Estate of Sally J Stewart

Pursuer

Sally J Stewart

First Defender

Steven Wilson

Second Defender

Procedural Posture

Action of Division and Sale / Application for Orders for Possession and Ejection After Decree for Division and Sale

Legal Issues

  1. 1 Whether a trustee in bankruptcy can obtain orders for possession and ejection against a co-proprietor in a pro indiviso property
  2. 2 Whether such orders serve any useful legal purpose or are competent

Ratio Decidendi

Orders for possession and ejection by a trustee in bankruptcy against a co-proprietor in a pro indiviso property are either incompetent or serve no useful purpose, as both proprietors retain equal rights to occupy until the property is sold.

Court Disposition

Orders for possession and ejection refused; orders for division and sale granted.

Orders

  • Warrant for division of the dwellinghouse granted
  • Warrant to sell the trustee's one half pro indiviso share granted