Inhibition has Effect only against Voluntary Rights.
Scot v. Turnbull
Date: 21 January 1629 Case No. No 93.
Found in conformity with Oliphant against Keith, No 91. p.7025. that an absolute alienation of the property of land after inhibition, will not be supported by the circumstance, that the patty inhibited had been under a previous obligation to give security for a debt.
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A reduction upon an inhibition, for reducing of a disposition of lands made after the inhibition, was sustained, albeit the defender alleged, that the same was made to him for satisfying of a debt of money, owing by the person prohibited, who was a common debtor to both parties, and which debt was owing to him by obligation long before the inhibition; so that the obligation being of a date long anterior to the inhibition, as it was lawful to him to have taken payment of his said anterior debt, after that inhibition, so it was lawful to him to receive the said alienation for satisfying of the said debt, the same being made ex hac causa, and for satisfaction thereof, and bearing to be due for that cause; which exception was repelled, and the alienation after inhibition was reduced, albeit the bonds for the debt preceded; seeing the bonds bore not, that the debtor was obliged to give the party creditor an alienation of these lands for that sum, but was made upon borrowing of money to be repaid again; and albeit it bore also, that the debtor was obliged to infeft the said defender in an annualrent for his money, out of any of his lands, which was found could not sustain the heritable alienation made after the inhibition.
The like decision was done in terminis, March 19. 1633, Kennedy and Irvine contra Captain Annand, in a reduction of a disposition of land, made by the common debtor to one of his creditors, for satisfying of a debt owing before the inhibition and the debt whereon it was served; notwithstanding whereof, the disposition of the land, done after the inhibition, was reduced by the second creditor, server of the inhibition.
Act. Stuart.Alt. Cunningham & Scot.Clerk, Gibson.
Fol. Dic. v. 1. p. 474. Durie, p. 415.*** Spottiswood reports this case:
William Turnbull having the five pound land of Howden disponed unto him by John Turnbull, redeemable upon 2000 merks, and having served inhibition against John upon the same disposition, intented a reduction of a posterior infeftment of the same lands given by the said John to Robert Scot of Hartwoodmyres, and that ex capite inhibitionis, as being done after the publication of his inhibition. Alleged absolvitor, because long before the said inhibition, or yet before the ground of the debt whereupon it proceeded, the defender having become cautioner for the said John to certain persons for great sums of money, the said John Turnbull, by the said bonds, was expressly obliged to relieve him of his said cautionry; and true it is, the defender was compelled to make payment of the same sums long before the inhibition served at the pursuer's instance; and so John might very lawfully have disponed his lands to the defender for his relief, conform to the bond of relief anterior to the said inhibition; and the disposition must be drawn back to the time of the relief; and so nothing done in prejudice of the inhibition. Likeas he alleged further, that the creditors to whom he became cautioner for John, did serve inhibition against John, to which inhibition he was made assignee by them at the paying of the sums for John. The Lords repelled this allegeance, reserving to the defender his action of reduction, as accords of the law, upon his prior inhibition, whereunto he was made assignee; but would not receive it by way of exception, to take away the pursuer's infeftment, nor to defend his own against the pursuer's ground of reduction.
