Exhaustion of Executry; - Challenge on the Head of Inhibition, - how Proponable.
Johnstoun v. Johnstoun
Date: 23 July 1674 Case No. No 74.
Inhibition cannot be used by exception or reply, but only by way of reduction.
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Johnstoun of Elshiesheills having apprised the lands of Temple-land from Janet Johnstoun, as charged to enter heir to her goodsire his debtor, did thereupon pursue reduction of a wadset of the lands granted by her father to Johnstoun of Lockerby, and reduced the same as being a non habente potestatem, because her father granter thereof died, never being infeft; he did also obtain decreets for mails and duties against Lockerby, who raised suspension of both decreets on this reason, that he had now, since these decreets, obtained a charter of confirmation of his former wadset from Janet Johnstoun, who was infeft as heir to her goodsire, containing a precept for infefting him, whereupon he was infeft before any infeftment was taken by Elshiesheills upon his apprising, and being in the natural possession of the lands by the first reduced wadset, eo momento, that he was infeft upon his new right, the same though base was clad with possession, and is prior and preferable to Lockerby's posterior public right on his apprising. It was answered, That the public right is preferable, the same having been in May, and the base infeftment in March, both before Whitsunday, so that the base infeftment could have no effect by lifting of the duties, till the term, before which the public infeftment intervened, and Elshiesheills having obtained decreets of mails and duties against Lockerby, he became thereby in the civil possession. 2do, In re litigiosa no new right granted by the common author voluntarily, can be preferred to the anterior diligence of a creditor; and so it hath always been found, that after denunciation of lands to be apprised, they become litigious, and no infeftment upon a voluntary disposition, though prior to the infeftment on the apprising, is preferable thereto, otherwise creditors' diligences might be altogether disappointed, and others preferred; and here the matter is not only litigious by apprising, but by decreets of reduction and mails and duties. 3tio, Elshiesheills hath used inhibition before Lockerby's new right, which though it cannot be made use of by excepttion, yet may be by reply, or in competition.
The Lords found that the inhibition could not be made use of without reduction; and found that the apprising did not make the subject litigious after denunciation, unless the appriser had proceeded in exact diligence to obtain infeftment, or to charge the superior, but having delayed for a long time, they found the base infeftment clad with natural possession, preferable to the public infeftment, though both was before the term, and in this case the new infeftment was not gratuitous or merely voluntary, because Janet Johnstoun who gave the same, was not only heir to her father, but also to her goodsire, who gave the first wadset. See Litigious.
