Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Isobel Law
v.
David Ahnot of Capledrae

Date: 22 January 1675

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The said Isobel, having arrested the price of lands, belonging to Capledrae* in the hands of David Arnot, as creditor to William Arnot, did thereupon pursue to make forthcoming.

It was alleged, That he could not be decerned to make forthcoming; because any right he had to the lands was only by a minute, whereby the said William was obliged to infeft him; which as yet he had never done: and so, as he could never crave the price of the said lands before performance, neither can any of his creditors arrest and pursue to make forthcoming, before he have a complete right in his person.

It was replied, That the defender ought to be decerned, notwithstanding; because he having really bought the lands, and obtained a disposition, whereby it was in his power to infeft himself, he was liable for the price thereof to the pursuer, as creditor and arrester to the disponer, and can never evite the payment of the price, unless he can allege that the right made to him can never take effect, as not being valid, or affected with prior incumbrances.

The Lords, having considered the minute, which did bear no precept of seasine, or procuratory of resignation, or any obligement upon the acquirer to infeft himself, they did assoilyie from making forthcoming; and found, That the defender was not obliged to instruct real incumbrances; but that the money arrested, being the price of lands, until he obtained a complete right, he was not liable to the disponer nor his creditors.

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