Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. V.
Personal Faculties and Privileges, whether they may be founded on directly by Creditors.
Lord Salton v. The Laird of Park and Rothiemay
Date: 20 February 1666 Case No. No 97.
A person interdicted having disponed lands, a creditor of his who had comprised the same lands, was found entitled to insist in a reduction ex capite inhibitionis.
Click here to view a pdf copy of this documet : PDF Copy
The Lord Ochiltree having a disposition of the estate of Salton From the umquhile Lord Salton in anno 1612, disponed the same to Park, Gordon, Rothiemay, and others; this Lord Salton having granted a bond to Sir Archibald Stewart of Blackhall, he thereupon apprised all right that could be competent to the Lord Salton of that estate; which right being now retrocessed to the Lord Salton, he pursues reduction of the Lord Ochiltree's, disposition, and of all these rights founded thereupon in consequence. The reason of reduction is founded upon an interdiction against the Lord Saltan, disponer, before his disposition; and there having been a process formerly depending at the instance of umquhile Sir Archibald Stewart, and being transferred after his death, the Lords allowed the process to proceed upon the minute of transference, without extracting the decreet of transference, which behoved to include the process and hail minutes, which could not be done for a long time; whereupon the Lord Salton, now insisting in the principal cause, it was alleged, first, No process till the principal cause were wakened; for, albeit the principal cause be transferred, yet it is but in statu quo, and therefore being sleeping, there can be no process till after the transference there be a wakening. The Lords repelled this allegeance, and found the transference sufficient without any wakening.——It was further alleged absolvitor, because the pursuer's title being an apprising, the defender has an anterior apprising, which does exclude the pursuer ay and while it be reduced or redeemed. It was answered, That the ground of this pursuit being a reduction upon interdiction, the interdiction cannot be directly apprised, but only the lands belonging to the person interdicted being apprised, all apprisers or other singular successors coming in the place of the heirs of the person interdicted may pursue on their rights, and thereupon reduce voluntary dispositions made contrary to the interdiction; which interdiction is not a right itself, but medium impedimentum exclusive of another right, as an inhibition; and as a first appriser cannot hinder a second appriser to make use of his right, except in prejudice of the first appriser, so he he cannot hinder him to make use of the interdiction to take away a voluntary disposition but prejudice of the first appriser's apprising, as accords; and, in the same way, a second appriser or any creditor might pursue upon an interdiction or inhibition against a creditor.
Which the Lords found relevant, and declared the pursuer might reduce this voluntary disposition upon the interdiction but prejudice of the defender's apprising. See Reduction.
