Inhibition has Effect only against Voluntary Rights.
L Scotstarbet v. Boswell
Date: 6 March 1639 Case No. No 96.
A party who was, prior to inhibition, bound to dispone lands, executed the disposition after inhibition. The disposition was not only sustained, but preferred to a posterior infeftment given to the inhibiter.
Click here to view a pdf copy of this documet : PDF Copy
The L. of Scotstarbet pursues reduction against William Boswell, for reducing of a contract of alienation of the lands of Pitodrie, made by David Boswell to the said William Boswell, defender, redeemable upon payment of 10,000 merks, with an inhibition served by the said William upon the said contract; the reason was founded upon a disposition of the said lands, irredeemable, made by the said David Boswell to Henry Mauld of Melgum, who was infeft, and which Henry had disponed the same to Sir John Scot pursuer; and the defender alleging against this reason, that it was not relevant, seeing both the pursuer's right, and his author's, are after the excipient's contract and inhibition; and as the same are in law good grounds to reduce the pursuer's rights libelled, so must they be found good grounds to elide this reason. The pursuer replied, that albeit the contract and infeftment granted to his author be after the defender's contract and inhibition, yet there was an anterior contract preceding the defender's contract and inhibition, by the which the said David Boswell sold to the said Henry Mauld the said lands; and the posterior disposition of selling of the said lands, albeit done after the inhibition, yet the same depending upon that contract, which preceded the said inhibition, the said subsequent infeftment granted thereafter, and contract, ought to be drawn back to the first, and the intervening inhibition cannot be found any impediment to have stayed the acquiring of the second right depending upon the first, and made conform thereto. The Lords repelled the allegeance, and found, that the intervening of the defender's contract and inhibition, betwixt the pursuer's author's first contract, and before the pursuer's author's second contract, was no impediment, but that his said author might lawfully perfect the contract after that inhibition, seeing the same depended upon the prior contract before the inhibition; and that the second was made according to the first, and for implement thereof.
Act. Advocatus.Alt. Gilmore & Sibbald.Clerk, Hay.
Fol. Dic. v. 1. p. 474. Durie, p. 879.
