Sutherland v. Standard Life Assurance Co. [1902] ScotLR 39_769 (03 July 1902)

Sutherland v. Standard Life Assurance Co. [1902] ScotLR 39_769 (03 July 1902)

Assuming, without deciding, that service of the petition by a messenger-at-arms was irregular, such irregularity does not affect the title of purchasers from the creditor under section 10 of the Heritable Securities (Scotland) Act 1894. The statute is intended to protect purchasers from the need to inquire into the regularity of the creditor's acquisition of title, and any such irregularity is not a fundamental nullity but is covered by the statutory protection.

Citation
[1902] ScotLR 39_769
Parties
Pursuer and Reclaimer: Evan Charles Sutherland; Defender and Respondent: Spencer Campbell Thomson (as manager and representing Standard Life Assurance Company); Defender and Respondent: Royal Bank of Scotland; Defender and Respondent: Andrew Carnegie of Skibo (individually and as curator/administrator-in-law of Mrs Carnegie); Defender and Respondent: Beckwith Smith
Jurisdiction
Scotland
Judgment Date
03 July 1902
Procedural Posture
Action of Reduction / Appeal From Interlocutor of Lord Ordinary (kincairney), Inner House, Second Division
Outcome
Appeal dismissed; interlocutor of Lord Ordinary adhered to; defenders assoilzied (absolved) from conclusions of the summons; defenders awarded expenses.
Legal Topics
Heritable Securities, Title to Heritage, Irregularity in Court Proceedings, Service of Process, Purchaser Protection
Property Law Civil Procedure Heritable Securities Title to Heritage Irregularity in Court Proceedings Service of Process Purchaser Protection

Case Brief

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Parties

Evan Charles Sutherland

Pursuer and Reclaimer

Spencer Campbell Thomson (as manager and representing Standard Life Assurance Company)

Defender and Respondent

Royal Bank of Scotland

Defender and Respondent

Andrew Carnegie of Skibo (individually and as curator/administrator-in-law of Mrs Carnegie)

Defender and Respondent

Beckwith Smith

Defender and Respondent

Procedural Posture

Action of Reduction / Appeal From Interlocutor of Lord Ordinary (kincairney), Inner House, Second Division

Legal Issues

  1. 1 Whether service of a petition in the Sheriff Court under the Heritable Securities (Scotland) Act 1894 by a messenger-at-arms (not a sheriff officer) is inept and invalidates subsequent proceedings and dispositions to purchasers.
  2. 2 Whether section 10 of the Heritable Securities (Scotland) Act 1894 protects purchasers from irregularities in the creditor's acquisition of title.

Ratio Decidendi

Assuming, without deciding, that service of the petition by a messenger-at-arms was irregular, such irregularity does not affect the title of purchasers from the creditor under section 10 of the Heritable Securities (Scotland) Act 1894. The statute is intended to protect purchasers from the need to inquire into the regularity of the creditor's acquisition of title, and any such irregularity is not a fundamental nullity but is covered by the statutory protection.

Court Disposition

Appeal dismissed; interlocutor of Lord Ordinary adhered to; defenders assoilzied (absolved) from conclusions of the summons; defenders awarded expenses.

Orders

  • Repels pleas-in-law for the pursuer.
  • Sustains third, fifth, and sixth pleas-in-law for the defenders.