If Inhibition strikes against Renunciations, Recognitions, or Conditional Alienations.
Mr Roger Hog v. The Countess of Home
Date: 10 December 1667 Case No. No 109.
A reduction ex capite inhibitionis was opposed, because the alienation was conditional. The reduction was sustained to take effect when the condition should be purified.
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Mr Roger Hog having apprised certain lands from the Laird of Wauchton in Alcambus, which were sold to Wauchton by the Earl of Home, with absolute warrandice; upon which warrandice there was inhibition used; whereupon Mr Roger pursues reduction of an infeftment of warrandice of these lands, granted by the Earl of Home to my Lady in warrandice of the lands of Hirsil, and that because the said infeftment of warrandice is posterior to the inhibition. The defender alleged, That there could be no reduction upon the inhibition, because there was yet no distress, which with a decreet of the liquidation of the distress, behoved to precede any reduction; and albeit there might be a declarator, that my Lady's infeftment should not be prejudicial to the clause of warrandice, or any distress following thereupon, yet there could be no reduction till the distress were existent and liquidate. The pursuer answered, That a reduction upon an inhibition was in effect a declarator, that the posterior rights should not prejudge the ground of the inhibition, for no reduction is absolute, but only in so far as the rights reduced may be prejudicial to the rights whereupon the reduction proceeds.
The Lords sustained the reduction to take effect, so soon as any distress should ocour.
Fol. Dic. v. 1. p. 476. Stair, v. 1. p. 491.*** Dirleton reports this case:
1667. December 11,—An inhibition being served upon an obligement to warrant; a reduction was thereupon sustained, though it was alleged there was neither decreet of eviction, nor liquidation of distress; the pursuit being only a declarator, and the decreet being only effectual after eviction and liquidation; which accordingly was declared by the Lords.
Betwixt the same parties, it was alleged, That the defender's right was ratified by a creditor, who had a comprising expired; so that the pursuer had no interest to question the defender's right; it was answered, That the pursuer desired only such right as was after the inhibition to be reduced, without prejudice of any other, which he could not nor was obliged to debate hoc loco.
The Lords, notwithstanding found the allegeance relevant. See Legal Diligence.—REDUCTION.
