UPPER CRATHES FISHINGS Ltd v BAILEY'S EXECUTORS
| Jurisdiction | Scotland |
| Judgment Date | 23 October 1990 |
| Date | 23 October 1990 |
| Docket Number | No. 5. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Clyde.
Heritable property and conveyancingCommon propertySalmon fishingsWhether division and sale of salmon fishings right an absolute rightWhether defence based on considerations of equity relevantWhether relevant to state defence that pursuers not entitled to insist in action of division and sale on basis that their purpose in acquiring one-half pro indiviso share was to embark on project of time-sharing of salmon fishings and not to join with defenders in their joint management, control and regulationRelevance of bad faith defence.
A limited company, the pro indiviso proprietors of certain salmon fishings, brought an action in the Court of Session seeking declarator that they were entitled to insist in an action of sale of the subjects which they averred were incapable of division or, at least could not be divided without loss and depreciation of value, and for division of the price. The defenders, the other pro indivisoshareholders, averred that the pursuers were not entitled to insist in the action, on the basis that their purpose in acquiring their one-halfpro indiviso share had been to embark on a project of time-sharing of the salmon fishings and not to join with the defenders in their joint management, control and regulation. The defenders averred that the pursuers had never had any genuine intention of managing the subjects on a mutually agreed basis and that their true purpose in acquiring their one-half share was to subvert the management of the fishings and thereby acquire the whole of the subjects for themselves by means of proceedings such as the action for division and sale. The defenders, accordingly, averred that the pursuers had entered in communion with them with an ulterior motive and in bad faith and that on what were essentially grounds of equity the ordinary remedy of a division and sale should be denied to them. The defenders also averred that the subjects were capable of division and that the question of a suitable division should be remitted to a man of skill. At procedure roll the Lord Ordinary (Clyde) excluded from probation the defence based on bad faith and remitted to a man of skill to report. The defenders reclaimed to the Inner House.
Held (aff. judgment of Lord Clyde), (1) that the right to resort to a division or sale was an absolute right and the right to demand division of the property at any...
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