Kings v. Johnstons and Others [1908] ScotLR 533 (28 February 1908)

Kings v. Johnstons and Others [1908] ScotLR 533 (28 February 1908)

Confusio did not operate to extinguish the prior securities because Aitken, upon acquiring the subjects by absolute disposition qualified by unrecorded back-letter, did not become absolute proprietor but held the subjects in trust for Riddagh. Therefore, the pursuers' bond for £1070 was not preferable to the prior bonds and ground-annuals, and the real burdens were not extinguished.

Citation
[1908] ScotLR 533
Parties
Pursuer: John King and Mrs Helen Robb or King; Defender: George Readman; Defender: Rev. William Johnston and Mrs Eliza Arbuckle or Johnston; Defender: Robert Reid, C.A.
Jurisdiction
Scotland
Judgment Date
28 February 1908
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
appeal dismissed; Lord Ordinary's interlocutor adhered to
Legal Topics
Confusio, Extinction of Real Burdens, Priority of Securities, Ground Annuals, Recorded and Unrecorded Back Letters
Property Law Security Rights Confusio Extinction of Real Burdens Priority of Securities Ground Annuals Recorded and Unrecorded Back Letters

Case Brief

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Parties

John King and Mrs Helen Robb or King

Pursuer

George Readman

Defender

Rev. William Johnston and Mrs Eliza Arbuckle or Johnston

Defender

Robert Reid, C.A.

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether two bonds and dispositions in security were extinguished confusione in the person of James Aitken upon acquisition of the subjects by absolute disposition qualified by unrecorded back-letter
  2. 2 Whether ground-annuals were extinguished confusione upon acquisition by Aitken
  3. 3 Effect of unrecorded back-letter on extinction of real burdens and priority of securities

Ratio Decidendi

Confusio did not operate to extinguish the prior securities because Aitken, upon acquiring the subjects by absolute disposition qualified by unrecorded back-letter, did not become absolute proprietor but held the subjects in trust for Riddagh. Therefore, the pursuers' bond for £1070 was not preferable to the prior bonds and ground-annuals, and the real burdens were not extinguished.

Court Disposition

appeal dismissed; Lord Ordinary's interlocutor adhered to

Orders

  • Finds that the two bonds for £350 each were not extinguished confusione and the pursuers' bond for £1070 is not preferable; assoilzies the defenders from the conclusions of the summons
  • Finds that the five ground-annuals were not extinguished confusione upon Aitken's acquisition of the subjects