Scottish Court of Session Decisions

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

Patrick Murray of Keiller
v.
John Drummond of Machanie

Date: 19 July 1677

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In a reduction of a right and disposition of lands, made by John Murray to Drummond of Machanie, by a minute, subscribed in November 1673, at the instance of the said Mr Patrick Murray, upon this reason,—That the pursuer had the same lands disponed to him by a minute from the common author, which was prior to Machanie's minute; and whereupon he had raised horning, and thereby declared him bankrupt; and so made Machanie's right to fall within the Act of Parliament 1621, against divours and bankrupts.

It was answered, That the defender's right could never be reduced upon that ground; because, albeit the minute whereby he had right was posterior, yet he, having first completed his right by public infeftment, he ought to be preferred to the pursuer, who had nothing but a minute, whereupon no diligence was done for completing his right: and, as to the horning, it could not make the common author in the condition of a bankrupt, and so any right granted by him thereafter to fall within the foresaid Act of Parliament; because the pursuer was no just and lawful creditor to John Murray, the common author, as having lent him any sums of money, or being cautioner for him, or having undertaken any debts in contemplation of his minute; and, therefore, it could be no ground to reduce the defender's posterior right, and make it fall within the Act of Parliament: seeing neither a lawful creditor was prejudged nor preferred, nor any prior diligence which could affect these lands; there being nothing but a minute and a horning; which could not incapacitate any subject to acquire the right of these lands, and to have the benefit of the first public infeftment against all prior latent deeds.

It was replied, That that pursuer, having not only a right by a prior minute, but having used horning thereupon, he was a true creditor by the said minute; and, by denouncing the common author rebel, did thereby make him bankrupt; and so any posterior right to fall.

The Lords did sustain the reason of reduction; and found, That Machanie's right did fall within the Act of Parliament as granted by a bankrupt: Which seems to be very hard; seeing Machanie had the undoubted right, by the first public infeftment:—that the Act of Parliament was clear and positive against fraudulent dispositions of lands, in prejudice of prior lawful creditors; whereby they would be deprived of their debts, by conveyance of their estates to others who had not affected the same by lawful diligence, whereof they could not be prejudged: whereas Murray of Keillar was never creditor, never having lent money, or engaged any wray for the common author; neither was his horning for payment of any debt, but only for completing a minute; by the not doing whereof, he was frustrated of no debt, but wanted the benefit of the real right of the lands, which our law did take from him for not doing diligence before another who got a posterior right, but did first complete the same. Likeas, it was of a general concernment, as to all trade and commerce, that a naked horning, whereupon neither a gift was given in Exchequer; nor declarator raised, to make it public; and whereupon nothing could have followed but the liferent escheat; should be a ground to reduce a personal and absolute right of property of lands by our law, and give it to another who had nothing but a naked minute; whereupon he did no real diligence, and so was justly deprived of the benefit thereof.

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