Although a right was granted in consideration of undertaking to pay certain debts, the creditors were found to have no real right, but only a personal action.
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Mr Cornelius Inglis having granted a bond to Mr John Inglis, for a sum due to himself, and for his relief of cautionries for the said Mr Cornelius, whereby he was obliged for his surety to infeft him in certain lands to be possessed by him, in case of not payment of the annualrent due to himself, and the reporting discharges from the creditors to whom he was engaged, and whereupon the said Mr John was infeft by a base infeftmen;
The said Mr Cornelius, in respect his son Mr Patrick had undertaken to pay his debts, did dispone to him his lands, whereupon the said Mr Patrick was infeft by a public infeftment.
The said lands being thereafter comprised from the said Mr Patrick, and there being a competition betwixt the said Mr John Inglis, and diverse other creditors of the said Mr Cornelius and his son Mr Patrick, who had comprised the said lands from the said Mr Patrick, the Lords found, that Mr John Inglis was preferable to the said other creditors, in respect, though their infeftments upon their comprisings were public and the said Mr John his infeftment was holden of the granter, yet the said Mr John's right was public as to Mr Patrick, in so far as the said Mr Patrick had corroborated the same, and before the said comprisings, had made payment to the said Mr John, of certain bygone annualrents in contemplation of his said right, and had taken a discharge from him relating to the same; so that his right, being public as to Mr Patrick, was public as to those who had right from him; and infeftments holden of the granter, being valid rights by the common law, and by act of Parliament and statute invalid only as to others, who had gotten public infeftments, in respect of the presumption of fraud and simulation; the said presumption cedit veritati, and in this case is taken away in manner foresaid.
The Lords found, that notwithstanding that the right was granted to Mr Patrick, upon the consideration foresaid, and for payment of the debt therein mentioned, that the creditors mentioned in the same, had not a real interest in the said lands, but only a personal action against the said Mr Patrick, in respect the said right was not granted to him for their use and behoof, neither was it expressly burdened with their debts; and therefore the Lords did find, that all the creditors, both of the said Mr Cornelius and Mr Patrick, who had comprised within year and day, should come in pari passu.
Dirleton, No 399. p. 105.
*** Gosford's report of this case is No 50. p. 2119.; voce Cautioner.
