Morrison v. Kirk and Others [1911] ScotLR 36 (04 November 1911)

Morrison v. Kirk and Others [1911] ScotLR 36 (04 November 1911)

The pursuer was not contractually barred from seeking division; the arrangement for the bond did not exclude her common law rights. Division was physically and practically possible and did not unfairly prejudice the interests of the defenders. Risks cited by defenders were speculative and not sufficient to override the pursuer's right. The Lord Ordinary's dismissal was erroneous; the proper course was to order division as proposed by the valuator.

Citation
[1911] ScotLR 36
Parties
Pursuer (reclaimer): Mrs Margaret Hannah Kirk or Morrison; Pursuer's Husband (consenter): Patrick Sandeman Beveridge Morrison; Defender (respondent): Robert John Kirk; Defender (respondent): George Mackintosh Kirk
Jurisdiction
Scotland
Judgment Date
04 November 1911
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Lord Ordinary's interlocutor recalled; case remitted for division of property as per valuator's report.
Legal Topics
Pro Indiviso Proprietors, Division and Sale, Heritable Property, Common Law Rights, Bonds Over Property
Property Law Pro Indiviso Proprietors Division and Sale Heritable Property Common Law Rights Bonds Over Property

Case Brief

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Parties

Mrs Margaret Hannah Kirk or Morrison

Pursuer (reclaimer)

Patrick Sandeman Beveridge Morrison

Pursuer's Husband (consenter)

Robert John Kirk

Defender (respondent)

George Mackintosh Kirk

Defender (respondent)

Procedural Posture

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

Legal Issues

  1. 1 Whether a pro indiviso proprietor is barred from seeking division and sale by an arrangement for a bond over the property for five years
  2. 2 Whether division is reasonably practicable given the existence of the bond and the interests of the parties

Ratio Decidendi

The pursuer was not contractually barred from seeking division; the arrangement for the bond did not exclude her common law rights. Division was physically and practically possible and did not unfairly prejudice the interests of the defenders. Risks cited by defenders were speculative and not sufficient to override the pursuer's right. The Lord Ordinary's dismissal was erroneous; the proper course was to order division as proposed by the valuator.

Court Disposition

Lord Ordinary's interlocutor recalled; case remitted for division of property as per valuator's report.

Orders

  • Recall of Lord Ordinary's interlocutor dismissing the action
  • Remit to Lord Ordinary to give effect to Mr Ormiston's report and proceed with division of the property