Mackenzie v. The North of Scotland Property Co., Ltd, and Others [1912] ScotLR 536 (08 March 1912)

Mackenzie v. The North of Scotland Property Co., Ltd, and Others [1912] ScotLR 536 (08 March 1912)

Heritable creditors in possession, as assignees of the bank, are not bound by contractual restrictions imposed by the debtor after the security was granted without the creditor's consent. The bondholders were validly in possession and entitled to let the property under statutory powers, regardless of the absence of a decree of maills and duties.

Citation
[1912] ScotLR 536
Parties
Pursuer: Robert John Mackenzie; Defender: The North of Scotland Property Company, Limited; Defenders: Trustees of Hugh Imlay, John Brown, James Murray; Defenders: Messrs Hunter & Gordon, advocates, Aberdeen
Jurisdiction
Scotland
Judgment Date
08 March 1912
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Court of Session Inner House
Outcome
appeal dismissed; interlocutor affirmed
Legal Topics
Heritable Security, Creditor in Possession, Right to Let Security Subjects, Effect of Post Security Contractual Restrictions, Powers of Heritable Creditors, Interdict (injunction)
Property Law Secured Transactions Landlord and Tenant Heritable Security Creditor in Possession Right to Let Security Subjects Effect of Post Security Contractual Restrictions Powers of Heritable Creditors +1 more

Case Brief

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Parties

Robert John Mackenzie

Pursuer

The North of Scotland Property Company, Limited

Defender

Trustees of Hugh Imlay, John Brown, James Murray

Defenders

Messrs Hunter & Gordon, advocates, Aberdeen

Defenders

Procedural Posture

Civil Appeal / Appeal From Sheriff Court to Court of Session Inner House

Legal Issues

  1. 1 Whether heritable creditors in possession are bound by contractual restrictions imposed by the debtor after granting security to the bank
  2. 2 Whether heritable creditors in possession are entitled to let security subjects despite such restrictions
  3. 3 Whether the bondholders' entry into possession was valid without a decree of maills and duties

Ratio Decidendi

Heritable creditors in possession, as assignees of the bank, are not bound by contractual restrictions imposed by the debtor after the security was granted without the creditor's consent. The bondholders were validly in possession and entitled to let the property under statutory powers, regardless of the absence of a decree of maills and duties.

Court Disposition

appeal dismissed; interlocutor affirmed

Orders

  • Interdict granted against the North of Scotland Property Company, Limited (no appearance)
  • Other defenders assoilzied (absolved) from conclusions of the action