Edmonstone — Petition, 9 Mar 1772 (Box 2)

Untitled March 9. 1772. Unto the Right Honourable the Lords o f Council and Session, T H E P E T I T I O N O F 9172, P E7TI,OTI2 N Farmer in Nether-Williamston. Humbly s hew eth, T H A T in the question between Robert Tweedale, latebrew- er at Mid-Calder, and the petitioner, which turned, upon this, Whether a disposition the petitioner had got from Tweedale, was a right in security or a sale? the Lord Barjarg, Ordinary, of this date, pronounced the following interlocu- tor: “ Finds, that the deed in question is only to be considered as a right in security; and finds that the pursuer is entitled to insi st in the action for payment; but that he must accompt for the rent of the tenement from the time that he entered into possession.” But upon a representation for Tweedale, and answers for the petitioner, the Lord Ordinary was pleased to pronounce the following interlocu- tor: “ Finds, that by the conception of the disposition in question, and of the said writing relative thereto, the said disposition is granted by thedfnr,accepted by the pursuer, in solutm of the debt, but redeemable upon payment of the principal sum, in- terest, and expences, being recovered by intromission with the rents, or by payment being made by the defender; therefore recals the interlocutor formerly pronounced, and remits the cause sim pliciter to the sheriff: And, in regard the cause has been fully pleaded before the Ordinary, recommends to the pursuer, i f he means to apply for an alteration of this interlocutor, to do it directly to the whole Court.” That the petitioner having reclaimed to your Lordships according- ly, on advising petition and answers, your Lordships, by interlocutor, of this this date, were pleased to adhere to the Lord Ordinary’s interlocutor, and refuse the detire of the petition, and find no expences due. Of which interlocutor, the petitioner must crave a review, in so far as it adheres to the interlocutor of the Lord Ordinary. The fact is, that the petitioner was creditor to Robert Tweedale, in 49 l. Sterling, which was made up of the following sums: Bill by John Ochiltree and Robert Tweedale, for about L Interest thereon, Bill by Robert Tweedale for about Interest thereon, Money advanced to redeem his brewing-looms, without any document, L. In July 1766, the petitioner applied to Tweedale for payment, which Tweedale represented would be inconvenient for him at that time; and therefore begged the petitioner would delay it, and he, in the mean time, would grant him a right for his security over some old houfes which he had belonging to him in the town of Mid-Cal- der, and would infeft him in these houses at his own expence. The petitioner, being unwilling to distress Tweedale, agreed to let the debt lie over for a few years; within which time Tweedale pro- mised to clear it, on condition that he would infeft him in the said houses; which being agreed to, the disposition, which gives rise to the present question, was wrote out by the since deceased John Gray, a kind of a writer, who, it would appear from said deed, understood very little of that business, and who, the petitioner has been since in- formed, was a notorious blunderer. T he narrative of this deed is as follows: “ Whereas I am just l y addebted, resting, and owing to James Edmonstone farmer in Nether Williamston, all and haill the sum of L. 49 Sterling mo- ney; (It appears that a blank was left for the sum when the deed was extended); therefore, for the said James Edmonstone his pay- ment of the said sum, and annualrents thereof resting since Whit- sunday last, that the said sum became due and payable, wit ye me to have fold and disponed, as I hereby sell and dispone, to and in favours of the said James Edmonstone, his heirs and asignees whatsomever, heritably, but always under redemption, in manner after mentioned, All and haill that tenement of houses, &c. with all right and title, interest, claim of right, property and possession, “ petitor • 5 0 0 1 0 0 24 0 0 3 0 0 16 0 0 49 0 0 petitor and possessor, which I, my predecessors and authors, heirs, or successors, had, have, or any wife may have,” & c. Then fol- lows an obligement to seise the petitioner by two infeftments, and manners of holding: “ But redeemable always the said houses and pertinents by me, my heirs and successors, from the said James Edmonstone and his foresaids, by payment to them of the fore- said sum of 49 l. Sterling money, and annualrents that shall fall due thereon since the term of Whitsunday last, the expence of in- feftments to follow hereon, and feu-duties that are due or may become due to the superior, and other necessary charges that may be disbursed by the said James Edmonstone and his foresaids in attaining the possession. " Then follows an assignation to an un- executed procuratory of resignation, contained in a disposition of said subjects, of date 25th December 1754, granted by Mr James Tweed- ale minister of the gospel, to the said Robert Tweedale the granter of the disposition in question; and the said Robert Tweedale not only assigns the petitioner " in and to the rents, maills, and duties of the said houses and pertinents since Whitsunday last, but in all time hereafter, until payment of the sums before mentioned, but also in and to the whole writs, rights, and evidents of the said houses, conceived in favours of me, my predecessors and authors; and particluarly the said principal disposition, of the date foresaid, granted by the said Mr James Tweedale to me, with all that is competent to follow thereupon; which assignation, so far as con- cerns the writs and evidents, I oblige and my foresaids to warrant to the said James Edmonstone, and his above written, at all hands; and with respect to the maills and duties, from my own proper fact and deed.” Both before granting this disposition, and at the signing of it, it was understood and communed upon, as could be proved, i f necessa- ry, by the instrumentary witnesses, that the money was to be paid in five years at most, and the annualrent in the mean time, Robert Tweedale mentioning that he expected the sum from James Tweedale minister at Old Luce, who is his brother, and from his aunt; and neither party at this time had any notion that the disposition im- ported any more than a right in security. The petitioner accordingly got no progress of writs delivered to him: All that he got put into his hands, was the above-men- tioned disposition from Mr James Tweedale, Robert’s uncle, which was necessary, in order to get Robert Tweedale infeft; and, as he had not money to pay the expence of his own infeftment, the petitioner petitioner was obliged to do it, and that was the reason why he got the disposition. At granting the said disposition, the petitioner delivered up the two bills above mentioned, which he did at the desire of the writer who told him it was proper he should do so; because, as the dispo- sition acknowledged the debt of 49 l. i f the petitioner retained the two bills which made part of that sum, he would so far have double securities for one and the same sum. Gray the writer infeft Robert Tweedale, in virtue of the precept of sasine in his uncle’s disposition, and also the petitioner, in virtue of the above disposition from Robert Tweedale to him; and gave in to the petitioner an accompt of the expence of taking these Infeft- ments, and of writing the disposition, which the petitioner, o f this date, paid: And from this accompt it appears, that Gray the writer understood the disposition g ranted in favour of the petitioner, to be a disposition in security; for one of the articles of that accompt is in these words:" T o stampt paper for disposition in s ecurity, Robert Tweedale to James Edmonftone, 1 s. 7 d." The petitioner did not enter into possession, nor do any thing in consequence 01 this disposition for several years after it was granted. But as Robert Tweedale had failed to fulfil his promise of paying the principal sum, cr even the annualrent, exceptings 2 l. Sterling which he received as part of annualrent, the petitioner again ap- plied to him, in May 1 7 7 0 but Robert Tweedale again begged a delay, and in order to prevail with the petitioner, granted him a new writing, of this dare, to the same purpose with the disposition above mentioned, on which nothing had been done, but in a man- ner derelinquished. The petitioner indeed, at this time, had obtain- ed a decreet of removing against him before the sheriff, but that he d id not pu t execution; and Robert Tweedale still continues to pos- sess part of the house he was then in. Two of the other houses were waste, and the two remaining were let at about 14 s. Sterling of rent yearly. The second writing granted by Robert Tweedale shows plainly, That he understoo d the first to be only a disposition in security; for it is in these words: “ Mid-Calder, M ay 21st, 1770. I R obert T weedale, eldest lawful son of Bailie John Tweedale, late merchant in Mid-C alder, by virtue of my disposition, dated in the year 1766, in favours of James Edmonstone tenant in Nether-Williamston, for a certain sum of money borrowed from him, I hereby empower and give all manner of right to the said house that I have in Mid-Calder, to the said James Edmonstone, to set and lift rents, and uphold the s aid subj ect, “ as 9% as my dispos ition contains, only always redeemable as the sai disposition bears, and ay and until he be fully paid of the whole sum that is contained in the said disposition, with all interest ay and until payment. This I do hereby give my full power, before these witnesses, John Weir tenant in Longheugh-mill, and Pe- ter Campbell clerk to Mr Donald Mackellar brewer in Mid-Calder, and hereto subscribing with me.” The petitioner, finding that Robert Tweedale was either unable or unwilling to fulfil his promises of payment, brought an action against him before the sheriff of Mid-Lothian, libelling upon the acknowledgment in the disposition of his being due him 49 l. as also of the sum of L. 3: 9: 5, as the expence of taking infeftments on the subjects, which had been disponed to him in security. Against this action the defender pleaded, that these subjects had been disponed to the petitioner in solutum; that the desposition re- sembled an improper wadset; and that thereby the petitioner was barred from asking his money, though the defender had it in his power to redeem the subjects at any time: And the sheriff, in respect of the disposition, assoilzied the defender. To which interlocutor he adhered upon a petition and answers. And the cause having been re- moved into this Court by advocation, Lord Barjarg, Ordinary, by his first interlocutor advocated the cause, and found, that the dis- position was only a right in security; but, by his after interlocutor, found the subjects were disponed in s olutum; and to that interlocutor your Lordships, on advisin g a petition and answers, have adhered. The subjects in question lie at a distance from the petitioner's place of residence. T hey, were they all occupied, would not yield above 5 l. Sterling of yearly rent at present: Most of them are waste, and cannot be repaired without a considerable expence, the outlay of which will probably be the source of disputes between Tweedale and the petitioner, were the disposition to be finally considered in the light it has been by the interlocutor; and as it would be a great hardship on the petitioner to be established perpetual factor on these houses, he must therefore submit the interlocutor to review. Mr Tweedale insi sted, that the disposition in question was a sale with a clause of redemption, which he said appeared chiefly from this circumstance, that the vouchers o f debt were delivered up, which he said was the same thing as i f he had paid the money and got a discharge, and then the pursuer had paid him back and got the dis- position. Before the disposition and delivery of the vouchers, the pe- titioner might have sued for his debt; but after the disposition, it was said, the 49 l. ceased to be a debt due by the pursuer, and became a a sum advanced by the petitioner to the defender, as the price of the subject s redeemable on repayment, when the defender thought pro- per: For though the deed acknowledged the debt, yet it contained no obligation upon the defender to pay it; on the contrary, the deed was granted in payment of the debt, and therefore, for the petitioner to sue for payment now, was to demand payment twice. But, withgreat submisio n, the petitioner conceives, that all this in- genious argument amounts to no more than a play upon words; and that it is extremely clear, the deed in question was no more than a right in security, not only from collateral circumstances and wri- tings, but from the nature and import of the several clauses in the deed itself, of which a full copy was annexed to the former petition, and all the material clauses in it are transcribed into this. That the writer of this deed would endeavour to express the mean- ing of parties the best way he could, cannot be doubted. This wri- ter was not the petitioner’s ordinary man of business, as was by mistake said in the answers to the former petition: He was a coun- try writer, employed because at hand by the parties, neither of whom, at that time, wanted to take any advantage of the other. The communing between the parties was, as already said, That the peti- tioner should not insi st for his money for some years, and in the mean time, get a right in security upon the defender's houses: This was a very proper and natural agreement; but a sale of the subjects under a perpetual redemption, as it would have been uncommon, so it would have been a very foolish bargain on the part of the peti- tioner. As there can be no doubt that the writer would endeavour to fol- low the meaning of the parties; so likewise is there no doubt that he understood the disposition in question to be no more than a right in security. This is proved by the article in his accompt above men- tioned, in which he charges 1 s. 7 d. as the expence of stampt paper for writing dispos ition in s ecurity, Robert Tweedale to James Edmon- stone. This writer, however, though very intelligent in farming, (to which business he almost entirely betook himself,) was by no means accurate or knowing in securities. Instead of taking an heritable bond of corroboration from Tweedale, which would have fully an- swered the meaning of parties, he extended the disposition in que- stion, which, though in reality no more than a right in security, as it is evident from all its clauses, yet from its form and some expres- sions, the consequence of that form has afforded the defender a handle for mantaining that it imported a sale. However, However, that form and these expressions afford nomore than a very slight handle; for it is evident from the whole clauses of the deed and circumstances attending it, that it was a right in security not a sale: And it is the clauses and circumstances of the deed that must determine whether it be the one or the other. “ Contractus pignoris, licet subinde per contrahentes veletur emptionis titulo, vel dationis in solutum, non tamen ideo minus pignus manet quoties cir- cumstantiæe concurrentes id suadent,” Voet.CmdTiPan Pig. Act. N. 1. That this disposition was not a sale, but only a right in security, is plain, First from this, That there was no price paid, nor no price mentioned in the disposition. Had it really been a sale, a price would have been mentioned and discharged in the disposition; but there is no word of a price in it from beginning to end; on the contrary a debt of 49 l. is acknowledged and mentioned as the inductive cause of the disposition. 2dly, No progress of writs was delivered to the petitioner, he having got no other paper than the disposition to Tweedale from his uncle, which was necessary in order to get him infeft; but all the other writs are still in the custody of the defender. 3dly, The property was not by this disposition transferred to the defender. All he got was a right to levy the rents, by which his right is declared to be extinguishable; and so the Lord Ordinary’s last interlocutor finds. Hence it is obvious, that if the house were burnt, or thrown down by an earthquake, or other accident it would perish to the defender, because he is proprietor; for the peti- tioner got no more than a right to the maills and duties until payment of the sums above mentioned. And this is still more clearly set forth in the subsequent right granted to the petitioner in May 1770, which is corroborative and exegetic of the former. By this last r igh t, Tweedale, " for a certain sum of money borrow ed from him, I hereby empower, and give all manner of right to the said house that I have in Mid-Calder, to the said James Edmonstone to set and lift rents, and uphold the said subject, as my disposition con- tains, only always redeemable as the said disposition bears, and ay and until he be fully paid of the whole sum that is contained in the said disposition, with all interest, ay and until payment.” 4th ly, Nothing whatever was done or followed upon this disposi- tion for several years alter its date. The petitioner indeed did bring a process or removing against Tweedale before the sheriff, and in De- cember 1769 obtained decree for his removing against Whitsunday 1770. He did not, however, enter into possession even then, never having having yet levied a sixpence of the rents, nor turned Tweedale out of the house, which he himself lives in. However, though he had even entered into possession at that time, as it was at the distance of near four years from the deed in question, real evidence thence ari- ses, that said deed was only a right in security, not a sale. 5thly, The defender, a considerable time after the date of the dis- position, paid the petitioner 2 l. of annualrents for this sum: No re- ceipt was taken. But the fact is admitted by the defender in his an- swers, in which he says it was paid before the petitioner took pos- session, in virtue of his right. What was the precise time of the payment, the petitioner really cannot say. But supposing it to have been before he entered into possession, that is, before he obtained the decreet of removing, it would make no difference; as the question, whether this disposition was a sale or security, does not depend upon, whether he entered into possession or not. If it was a security, possession would not convert it into a sale. From the different clauses of the deed, and the several circumstan- ces above mentioned, the petitioner cannot help thinking it is ex- tremely clear, that the deed in question was not a sale, but a secu- rity. The last interlocutor of the Ordinary finds, that the right granted by the disposition was extinguishable by the rents: But, at the same time, it finds, that the disposition was granted in solutum of the debt. And the import of these different findings seems to be, that the peti- tioner, by accepting of that disposition, was barred from doing dili- ligence for recovery of his money, which was grounded upon this chiefly, that the disposition is declared to be in payment of the debt acknowledged in the disposition, and the vouchers delivered up; which last circumstance, the petitioner is informed, had considerable weight with your Lordships at pronouncing the interlocutor under review. But as to the delivery of the vouchers of the debt, that circum- was not sufficiently explained in the former petition, and greatly misrepresented in the answers, from which your Lordships were led to believe, that the vouchers of the whole debt had been delivered up; whereas the fact is, as already said, that only the two bills were deli- vered up: For as to 16 l. of the debt, the petitioner had n0 written voucher at all. This Tweedale cannot deny, as he has no other voucher delivered up than these two bills to produce. The fact is, as already set furth, That when the whole debt, vouched and unvouched, was acknowledged in the disposition, to the amount of 49 l. the writer told the petitioner, it would be proper he should deliver up the the two bills, as otherways he would have double security for the same sum; and the petitioner accordingly delivered up such written vouchers as he had, which was certainly proper. Even though the whole debt had been vouched by writings, and all these writings de- livered up, yet the petitioner cannot think that the disposition ought to be reckoned an extinction of the debt, because this very disposi- tion expressly acknowledges the debt, and thereby keeps it up. And as the disposition is expressly granted only until payment of this debt acknowledged, it is clear, that the debt was not understood to be extinguished at the time. However, the fact is, that only part of the debt was vouched by writing; as to the other part, the petitioner had no voucher, and the only document he has of it, is the acknow­ ledgement in the disposition. As to Mr Tweedale’s observation, that the disposition contains no obligation to pay the debt which it acknowledges, that is, with sub- mission, a mere quibble: For if once a man acknowledges a debt an obligation to pay is implied, and will be inforced by every court of law. The question, therefore, in this case, really comes to this, Whe- ther a creditor who has accepted of a pledge or right in security from his debtor, is thereby barred from insi sting to have his money o- therways than out of the pledge or right in security? Now the petitioner humbly conceives, that this is no question at all. The contract of pledge is accessary, and is meant to strengthen not to weaken or diminish the creditor’s right; and it would be most unreasonable, if the creditor finds it either impossible or inconvenient to recover payment out of the pledge, to hinder him from operating it otherwise, because he had done a favour to the debtor in taking the pledge, in consideration of which the debtor obtained a delay. As to the expression in the disposition, that it was in payment o f the debt acknowledged: In here, it is evident, means towards; because if the subjects did yield any rent, and if the petitioner had entered into possession, the rents he uplifted, no doubt, went in payment of his debt so far, and he must have accounted for his intromissions when settling with his debtor. But it is plain, the expression, in payment, did not and could not mean in satisfaction or extinction; because it was uncertain, whether or not the subjects would pay the debt: For it is admitted, that if they lay waste, or perished by accident, the risk was upon the debtor; and therefore, and as the disposition giv e s right to the subjects only till payment, it is plain, that the meaning of the expression, in payment, was no more than towards payment. The The taking a pledge in no case, so far as the petitioner knows, bars a creditor from insisting personally against his debtor for his money. In the case of a wadset, i f there be no particular clause as to a requisition, the wadsetter may charge with horning for his money. In the case of an adjudication, which is a legal pledge, the adjud- ger, notwithstanding his adjudication, and entering into possession, may do diligence against the debtor. The obtainer of a special adjudi- cation indeed cannot, but that is by an express clause in the statute 1672, which does not extend to general adjudications; and so it was determined, 25th July 1740, A lison and J ean M ‘Beans contra William Ormiston, observed by Clerk Hume, No. 154, in which case this Court passed a bill of horning against a debtor, at the in- stance of an adjudger who had entered into possession. And indeed it is obviousl y agreeable, both to the principles of law and reason, that a creditor who takes an accessary security, should not thereby render his condition worse than it was before: And it this holds in legal pledges, which the creditor has forced from the debtor by inter- position of the law, it should hold a fortiori in a conventional pledge, such as the present, which was taken at the desire of the debtor, and with a view to favour him. The petitioner cannot conclude, without taking notice of a most unjust clamour raised against him by Tweedale in his answers which pretended that the petitioner was now insisting for decreet against him, in order to dist ie ss him. But that the petitioner has by no means been a rigorous creditor, is evident from the very res gesta in quest ion: He did not distress Mr Tweedale upon his bills, which he easily might have done, and thrown him into prison: He, on the contrary, agreed to delay his payment for several years on getting a securit y; and even upon that, he has done nothing; for Mr Tweedale’s alledgeance that, upon the decreet of removing, he had turned him out of the house which he possessed, is not f act. It is true, that in December 1769, the petitioner obtained a decreet of removing against Tweedale, decerning him to leave the houses against Whitsunday next; though the petitioner had put this decreet in execution, he cannot see upon what grounds he could have been accused of rigour. However, he did not remove Mr Tweedale, nor has he ever touched any of the rents yet; but as he found that he could not recover his payment out of the subjects in question, even at the distance of years, he was laid under the ne- cesi t y of endeavouring to operate it otherways. I t is not, and never was his view, upon obtaining decree against Mr T weedale, to distress him personally; but he wants to put matters between them upon a different different footing than that of his being factor at pleasure for Mr Tweedale upon the subjects in question, which, he is certain, was not the meaning of parties, and which he apprehends is not the import of the disposition. The petitioner must; observe, that the judgments hitherto pro- nounced in this cause, apply only to the first branch of his libel, which concludes for payment of the 49 l. Sterling, acknowledged in the disposition. But no judgment has as yet been given upon the other branch, which concludes for payment of L. 3: 9: 5, as the expence of the infeftments taken in consequence of that disposi- tion. Suppose Mr Tweedale was right in arguing that the disposition extinguished the 49 l. Sterling which was due before, and at the date of the disposition; yet it is evident, that disposition could not extinguish a debt that arose after it was granted, which is the case as to the expence of the infeftments, for which the petitioner, in all events, is entitled to have decree. However, the petitioner is hope- ful, from what has been above submitted, that there will be no oc- casion for making any dist in ction, and that your Lordships will be satisfied, the disposition in question was only a security, not a sale; and that by taking that security, the petitioner is not barred from asking decreet, in order to operate his payment in a different manner. May it therefore pleas e your Lords hips, to review your former interlocutor, advocate the cause, and decern in terms of the libel. According to ju stice, &c. J O. M‘LAURIN.