Fenton Livingstone v. Crichton's Trustees [1908] ScotLR 896 (18 July 1908)

Fenton Livingstone v. Crichton's Trustees [1908] ScotLR 896 (18 July 1908)

Mere survivance does not constitute 'taking the estate by succession' within the meaning of section 47 of the Conveyancing (Scotland) Act 1874. An heir is not personally liable for the ancestor's debt secured over heritable property unless he makes up title or otherwise accepts the succession. The charge for payment against the heir was therefore baseless and must be suspended.

Citation
[1908] ScotLR 896
Parties
Complainer (reclaimer): T. F. Fenton Livingstone (a minor) and J. J. M'Murdo, curator bonis; Respondents: William Gibson, W.S., and others as trustees of Hew Crichton and Miss Margaret Crichton
Jurisdiction
Scotland
Judgment Date
18 July 1908
Procedural Posture
Civil (succession, Diligence, Security) / Appeal (reclaiming Motion) From Lord Ordinary's Refusal of Suspension
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled; charge suspended; case remitted to Lord Ordinary to pass the note of suspension and award expenses.
Legal Topics
Transmissibility of Personal Obligation, Liability of Heir for Ancestor's Debts, Bond and Disposition in Security, Conveyancing (scotland) Act 1874, Diligence Against Heirs
Succession Property Law Security Rights Civil Procedure Transmissibility of Personal Obligation Liability of Heir for Ancestor's Debts Bond and Disposition in Security Conveyancing (scotland) Act 1874 +1 more

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Parties

T. F. Fenton Livingstone (a minor) and J. J. M'Murdo, curator bonis

Complainer (reclaimer)

William Gibson, W.S., and others as trustees of Hew Crichton and Miss Margaret Crichton

Respondents

Procedural Posture

Civil (succession, Diligence, Security) / Appeal (reclaiming Motion) From Lord Ordinary's Refusal of Suspension

Legal Issues

  1. 1 Whether an heir-at-law is personally liable for a debt secured by bond and disposition in security over heritable property, by mere survivance, without making up title or accepting succession, under sections 9 and 47 of the Conveyancing (Scotland) Act 1874.

Ratio Decidendi

Mere survivance does not constitute 'taking the estate by succession' within the meaning of section 47 of the Conveyancing (Scotland) Act 1874. An heir is not personally liable for the ancestor's debt secured over heritable property unless he makes up title or otherwise accepts the succession. The charge for payment against the heir was therefore baseless and must be suspended.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled; charge suspended; case remitted to Lord Ordinary to pass the note of suspension and award expenses.

Orders

  • Recall of Lord Ordinary's interlocutor refusing suspension
  • Sustain complainer's third plea-in-law