Inhibition is a sufficient title to reduce posterior deeds, made in prejudice of it, though infeftment has followed on such deeds.
Click here to view a pdf copy of this documet : PDF Copy
James Monteith, assignee constituted by William Davidson, to a bond granted by James Blair, and to an inhibition executed upon the same, intented a reduction of another bond granted by the said James Blair to Jean Haliburton, and of a comprising and infeftment following thereupon ex capite inhibitionis.—Alleged, 1mo, The pursuer's interest being only upon a bond and inhibition, could not be sustained for reducing of the defender's comprising and infeftment, especially being cloathed with seven years possession, so that the legal was expired before the intenting of his action, unless the pursuer or his cedent had some real right by comprising and infeftment likewise.———The Lords repelled this allegeance in respect that an inhibition gives one a good enough interest to reduce any posterior deed in prejudice of the said inhibition, albeit infeftment has followed thereupon.—2do, Alleged, The inhibition is null, because by act of Parliament 1581, c. 119. all inhibitions should be registrated in the Sheriff-clerk's books, or Stewart's, where the person inhibited has his land lying; but so it is, that the pursuer's inhibition was not registrated in the books of the regality of Dalkeith, where the said James Blair's lands lay.—Answered, That ought to be repelled, in respect of the act of Parliament 1597, c. 268. which ordains inhibitions, &c. to be registrated only in the Sheriff or Bailie's books where the person inhibited dwells; but so it is, that the said James Blair, the time that he was inhibited, dwelt in Edinburgh, where the inhibition is registrated.—Duplied, The last act must be ruled according to the first, because in the end thereof it ordains all the clauses inserted in the former acts to be repeated and holden as insert in this last——The Lords found this allegeance relevant; for an inhibition that should affect any lands must be served and registrated within the Sheriffdom where these lands lay.
Spottiswood, (Inhibition.) p. 178.*** Durie reports this case:
One Blair being debtor to William Davidson, in the sum of L. 200, whereupon having served inhibition against Blair, both at the cross of Dalkeith, which is the head burgh of the regality where the said Blair had a tenement of land and houses, and also at the market cross of Edinburgh, being the head burgh of the Sheriffdom, within the which the debtor dwelt for the time; and this tenement of Dalkeith being thereafter comprised by Jean Haliburton, another of Blair's creditors, after the inhibition; Monteith, as assignee to Davidson's right and inhibition, pursues reduction of that comprising and infeftment, as done after inhibition: Wherein the Lords sustained reduction at this creditor and assignee's instance, upon the said simple moveable obligation and inhibition, albeit the pursuer was not infeft, nor had any real right, and albeit it tended to reduce the infeftment and comprising in the defender's person. And the Lords found, upon another allegeance, the inhibition null, because the tenement comprised lay within the regality of Dalkeith; and albeit the inhibition was executed at Dalkeith cross, yet the same was not registrated in the clerk's books of that regality, as the defender alleged it ought to have been, and is provided by act of Parl. 1581; and which act, and the solemnities thereby appointed for executions within Sheriffdoms, is renewed and required within Stewartries and Regalitiest, by act of Parliament 1597; and which the Lords found ought to have been registrated; neither found they it enough that it was executed there, not being registrated there; neither was it sufficient, that the pursuer replied that it was registrated in the Sheriff court books of Edinburgh, within which the party prohibited dwelt for the time, viz. within the town of Edinburgh, seeing he dwelt not then within the regality; and contended, that the act of Parliament 1597 required no such registration, where the parties dwelt not within the regalities; which reply was not respected, but the exception sustained, and the inhibition found null. See Registration. Title to Pursue.
