The Rev. Dr. John Inglis, and Others, - Appellants; Thomas Mansfield, - Respondent
| Jurisdiction | Scotland |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Court of Session |
English Reports Citation: 6 E.R. 1472
FROM THE COURT OF SESSION.
Mews' Dig. i. 367; iv. 859. See Metropolitan Asylum. District v. Hill, 1880, 5 A.C. 582.
[362] APPEAL from the court of session. The Rev. Dr. JOHN INGLIS, and Others,-Appellants; THOMAS MANSFIELD,-Respondent. [Mews' Dig. i. 367 ; iv. 859. See Metropolitan Asylum. District v. Hill, 1880, 5 A.C. 582.] W. lent money on the security of a,n estate, which he believed, on the representation of the borrower, to contain 95 acres, and to be ample security for the sum lent. The borrower, after paying the interest of the loan for four yea-re, became bankrupt, and the trustee on his sequestrated estate discovered that the description of the lands charged in security to W. did not comprise more than six acres. W. being advised of the objection to his security, applied to the bankrupt, and obtained from him a corroborative and supplemental bond, reciting the former deed, and subjecting the whole 95 acres, as originally intended, to secure the loan, and W. obtained infeoffment on this- latter security before the trustee in the sequestration completed his feudal title. Held, by the Lords, affirming the interlocutor of the Court of Session, that the supplemental bond was void as against the trustee. The-rule with respect to costs in the House of Lords, as in the Privy Council, and in Chancery, is, that one cannot appeal for costs alone, but if an appeal be brought on the merits-not on colourable grounds of appeal, for the purpose of raising the question of costs-the House will not treat that as an appeal for costs, but will even, in affirming the judgment of the Court below, consider the 1472 INGLIS V. MANSFIELD [1835] III CLARK & FINNELLY. question of costs as fairly raised, and where there is hardship on the Appellant, will reverse so much of the judgment of the Court below as gave costs against him. In the month of November 1823, Josiah Walker, then Professor of Humanity in the University of [363] Glasgow, since deceased, employed Mr. Joseph Gordon, W.S., to lend out for him the sum of £6000 on heritable security. Mr. James Stuart, of Dunearn (a friend of Mr. Gordon), wanted at the time a loan of from £10,000 to £12,000, on the security of his estate of Hillside, which appearing to Mr. Gordon to afford an adequate security for the sum wanted, he entered into a treaty for the investment of Professor Walker's £6000, and of two other sums of £3000 and £1500, for other clients, Colonel Sutherland Sinclair and Misses Ramsay. The estate which Mr. Stuart thus offered as security for the pro-posed loan, was represented by him as extending to ninety-five acres, comprehending all the grounds then belonging to Mr. Stuart about his house at Hillside, and known by the general name of Hillside. Mr. Gordon was, throughout the negotiation, led to believe, and he did believe, that the security would comprehend the whole of the lands; but before coming to any final resolution, he got from Mr. Stuart a, valuation of the lands, framed by Dr. Coventry, on the employment of Mr. Stuart, with the view to the intended loan. That document was thus headed : " Contents and estimated value of the lands, plantations, etc., of Hillside, belonging to James Stuart, Esq., and lying in the parish of Aberdour, and shire of Fife "; the domain lands, east of the road, were stated to contain 59 acres, and were valued at £12,559, 10s.; the' lands west of the road, containing 36 acres, were valued at £8736 ; to which were added, the mansion, offices, timber, etc., valued at £1200, all amounting, after deduction of certain burdens, to £21,655 10s. Mr. Stuart afterwards sent the titles and searches to Mr. Gordon, with a description of the lands as follows: " All and whole of the lands of Hillside, formerly called The Brewery of [364] Newton, with houses, buildings, yards, orchards, etc., etc., and whole pertinents of the same whatsoever, together with the teinds included in the said lands of Hillside, all lying in the lordship of St. Cb'lme, barony of Beith, and sheriffdom of Fife." Relying upon Mr. Stuart's representations, valuation of Dr. Coventry, and the description of land so furnished, as well as on the search of incumbrance and titles exhibited, Mr. Gordon adopted the above description in preparing the bonds to his clients, believing it to be the proper description of the lands and estate of Hillside, and to comprehend the whole of these lands. The bonds fo- prepared by Mr. Gordon were executed by Mr. Stuart on 7th December 1823. Professor Walker and the creditors in the two other bonds', were duly infeft in the lands, in terms of the bonds, on the 1st January of 1824 ; their sasines were immediately thereafter recorded. and they continued respectively to receive the interest of the above loans from Mr. Stuart for four years. Mr. Stuart's affairs afterwards fell into embarrassment, and his estates were sequestrated under the Bankrupt Act, on the 1st of September 1828 ; Mr. Mansfield, the Respondent, was in due time elected trustee in the sequestration, and his election was confirmed by the Court on 6th October following, in common form. The Act of Confirmation contained the general and usual order upon Mr. Stuart, as the bankrupt, to grant all proper and necessary conveyances in favour of the Respondent, in order to vest him with the estate; and likewise a general decreet, declaring the whole estates belonging to the bankrupt to belong to the Respondent as trustee; but this decreet did not confer any special right, or constitute feudal title in the Respondent. The Respondent discovered, soon after his appoint-[365]-ment, that Professo-i- Walker's security only comprehended a small part, not more than six acres of the lands which went under the general name of Hillside, and which consisted of various other parcels besides those described in the bond to ProfessoT Walker, and were held under different titles. Professor Walker and the other heritable creditors having intimation of that discovery, took steps for completing their security, and obviating the Respondent's objection, before he as trustee had completed his feudal title in the lands. With that view application was made to Mr. Stuart, who had withdrawn to America after hisi bankruptcy, to grant corroborative or supplemental bonds in favour of Professor Walker and the other two lenders. Mr. Stuart atrreed. and H.L. vi. 1473 47 Ill CLARK & FINNELLY. INGLIS V. MANSFIELD [1835] granted such bonds. The bond in favour of Professor Walker narrated the treaty between Mr. Stuart and Mr. Gordon, the agreement for a, security over the whole lands' and estate of Hillside, the furnishing of Dr. Coventry's valuation, as evidence of the extent and value of Hillside, the sending of the description of the lands by Mr. Stuart to Mr. Gordon, the subsequent transmission of the searches and titles:, Mr. Stuart's approval of the bonds, as prepared by Mr. Gordon, containing the above description, and then set forth, " That although from the correspondence, etc. there can be no doubt that the true intent and meaning of the covenants entered into betwixt the parties who made the said loan, and me, was, that the security granted to each of them should extend over the whole of my lands and estate known by the name of Hillside, and to which the valuation by Dr. Coventry related; and that it was understood and agreed at the time, that the description of lands engrossed in the bonds, and transcribed from the [366] titles exhibited, covered the whole of those lands; yet, as it has been alleged, etc., that the description in the said bonds does not comprehend the whole of the said lands and estate of Hillside, as contained in Dr. Coventry's valuation, and that the validity of the said securities is threatened to1 be disputed, etc.; it is, therefore, just, and reasonable that I should grant the cumulative and corroborative disposition in security underwritten, etc. Therefore, etc., in farther and more full and perfect implement to him the said Josiah Walker, of the covenant and obligation entered into by me, as the condition of the advance and payment acknowledged by the said bond and disposition in security, the deed then conveyed to Mr. Walker ' all and whole my lands and estate of Hillside, in the parish of Aberdour, and sheriffdom of Fife, in Scotland, extending to 95 acres of land, or thereby.' " This corroborative bond was formally executed by Mr. Stuart, on 20th May 1829, and infeftment in favour of Mr. Walker, was duly recorded on 13th July 1829. The Respondent had in the meantime, also taken steps for completing his title to the lands, as trustee in the sequestration, for on the 19th June 1829 he obtained a special disposition of the lands from Mr. Stuart, in implement of the prior order and decreet of the court, and he was infeft on that disposition on the 12th of August 1829. In those circumstances, the Respondent brought his action against Professor Walker in January 1830, for the purpose of having the supplemental security reduced and set aside. Professor Walker died while the action was pending, and the Appellants', the...
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