Wallace v Simmers
| Jurisdiction | Scotland |
| Judgment Date | 25 May 1960 |
| Date | 25 May 1960 |
| Docket Number | No. 28. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Heritable PropertySale of heritagePersonal right of occupancy over part of property of which purchaser was aware before purchaseEffect of personal right on purchaser.
The owner of a farm entered into a minute of agreement with his son, whereby he agreed to sell the farm to his son, under the reservation of the right of occupancy of one of the cottages in favour of himself, his wife, and his daughter, so long as they desired. The disposition of the farm in favour of the son which followed the minute did not contain a reference to the reservation, and was duly recorded in the appropriate division of the General Register of Sasines. After he had sold the farm, the owner, his wife, and his daughter occupied the cottage. The owner and his wife died and the daughter continued in occupation. Some time thereafter, the son exposed the farm for sale by public roup. At the roup, the farm was sold to purchasers who had been informed before the roup that the cottage was subject to the daughters right of occupancy. After the sale, the daughter continued in occupation of the cottage. The purchasers completed title to the farm and brought an action to eject the daughter from the cottage.
Held that, as the daughter's right of occupancy was a personal right exercisable only against the granter and not capable of being made a real right, it was not valid against a singular successor, even if he had prior knowledge of it; and that, accordingly, the purchasers were entitled to decree of ejection against her.
Morier v. Brownlie & WatsonUNK, (1895) 23 R. 67,followed.
Stodart v. DalzellUNK, (1876) 4 R. 236,distinguished.
Robert Wallace And Douglas Wallace brought an action of ejection in Peterhead Sheriff Court against Margaret Simmers in which they craved the Court to "grant warrant to officers of Court summarily to eject the defender and her goods, gear and effects from the subjects known as The Leys, Overton of Memsie, Fraserburgh; And on defender being so ejected to interdict her in all time coming from entering into the said premises."
The following narrative of the material facts is taken from the note of the Sheriff-substitute (Aikman Smith) :"The pursuers, on 22nd July 1959, purchased by public roup the farm of Overton of Memsie, Fraserburgh. The defender for the last twelve years has resided in a cottage known as The Leys on the farm, and claims that she has a liferent right to continue to do so. She is the sister of the late William Simmers, Junior, from whom the pursuers purchased the farm.
"William Simmers, Junior, acquired the farm from his and the defender's father, the late William Simmers, Senior, in terms of a disposition dated 7th and recorded 22nd February 1947. For the purposes of the debate, it is admitted that three months before the execution of this disposition, the father and son entered into a minute of agreement dated 11th November 1946, whereby the father agreed to sell to his son the farm, heritable fixtures, fittings, crops, livestock and other subjects, but reserved the right to occupy by himself, and his wife and daughter, Margaret Jane (the defender) for such time as he or they may desire to do so, one cottar house on the farm together with one half acre of land free of rent or taxes. William Simmers, Senior, and his wife thereafter resided in The Leys along with the defender, and, since the parents deaths, the defender has continued to occupy the cottage.
"On 7th July 1959, two weeks before the roup at which the pursuers purchased the farm the defender's solicitors wrote to the pursuers solicitors intimating that the defender intended to remain in occupation of the cottage, and to maintain her rights under the minute of agreement. Immediately following the roup, on 22nd July 1959, the defender through her solicitor wrote to the second-named pursuer intimating her claim...
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