Wylie sold certain tenements to Archibald who took infeftment on the disposition. On the same day as he received the disposition Archibald granted a letter to Wylie binding himself to resell the tenements to Wylie on six months’ notice. The following year Archibald was sequestrated and the trustee, who was infeft, sold the tenements. Wylie then produced the letter and insisted that the original transaction had been intended as a security for a loan. He therefore claimed to be entitled to redeem the tenements on payment of the sum borrowed. He brought proceedings against the trustee before the Glasgow magistrates who assoilzied the trustee. Archibald appealed to the Court of Session, arguing that the trustee must take the debtor’s property tantum et tale, subject to the right of redemption.
Held: Personal qualifications which do not appear in the record are unavailing as real burdens on the property and are of no effect against third parties: ‘The question, however, must always return to this, What was truly the extent of real right in the debtor? And although he may be under a relative personal obligation, the real right legally constituted is that only which his sasine bears, and of which it gives assurance to the public; and accordingly, it has at last been held that such personal exceptions have no effect against creditors’ The bankrupt was under an obligation to reconvey the property to the seller on demand, on the ground that that was not a case of a trust qualifying the title of the trustee but was a case where the bankrupt had purchased the estate ‘out-and-out’ and that the obligation to reconvey was purely personal. ‘Tantum et tale has often been pleaded against adjudgers; and if good against them, would be so against trustees. But the law for some time has held otherwise . . . Tantum et tale is good as to objections, which go to the extinction of the subject adjudged; eg if heritable bond adjudged, extinction is a good answer. If right qualified gremio, that is also a good answer. But if not, as here, and not going to extinction, it is a mere personal matter, which touches not the adjudger more than a lender on heritable bond . . . As to an adjudger, if there is any doubt, let us solemnly hear the case. But I hold that there is none. He takes on the faith of the record, not tantum et tale.’
References: 1803 M 10269, 3 Ross’s LC 134
Judges: Lord President Campbell
Jurisdiction: Scotland
This case is cited by:
- Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194228