Bruce v. Stewart [1900] ScotLR 37_739 (06 June 1900)

Bruce v. Stewart [1900] ScotLR 37_739 (06 June 1900)

A power to sell heritage does not include a power to excamb; as neither set of trustees had express or court-conferred power to excamb, the contract of excambion was ultra vires and the title was not marketable. Additionally, decrees of irritancy obtained in absence and reducible within the prescriptive period render the title unmarketable. The purchaser is not bound to accept such a title.

Citation
[1900] ScotLR 37_739
Parties
Pursuer: John William Bruce; Defender: Andrew Stewart
Jurisdiction
Scotland
Judgment Date
06 June 1900
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Judgment
Outcome
appeal refused; judgment for defender
Legal Topics
Sale of Heritage, Trustee Powers, Marketable Title, Excambion, Decree of Irritancy
Property Law Trust Law Sale of Heritage Trustee Powers Marketable Title Excambion Decree of Irritancy

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Parties

John William Bruce

Pursuer

Andrew Stewart

Defender

Procedural Posture

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

Legal Issues

  1. 1 Whether a power to sell heritage includes a power to excamb (exchange) property for trustees under Scottish law
  2. 2 Whether decrees of declarator of irritancy obtained in absence render a title unmarketable

Ratio Decidendi

A power to sell heritage does not include a power to excamb; as neither set of trustees had express or court-conferred power to excamb, the contract of excambion was ultra vires and the title was not marketable. Additionally, decrees of irritancy obtained in absence and reducible within the prescriptive period render the title unmarketable. The purchaser is not bound to accept such a title.

Court Disposition

appeal refused; judgment for defender

Orders

  • Reclaiming motion refused; judgment of Lord Ordinary adhered to
  • Pursuer not entitled to decree for implement or damages