The Earls of Southesk and Northesk v. The Lairds of Pourie, Bandoch, and Others
Date: 25 February 1680 Case No. No 69.
An inhibition was sustained, though not executed at the market cross of the regality in which the lands lay, because it was executed in the Usurper's time, who abolished all regalities.
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This was a competition betwixt a voluntary disposition and a prior comprises who raised a reduction ex hoc capite, that the disposition flowed a non babente potestatem, from one denuded:—Answered, The compriser being in mora, and using no diligence, Bandoch was in bona fide to buy the land, finding nothing to impede him at the ordinary registers. Replied, A comprising hath at least the force of an inhibition. The Lords found, the compriser being negligent by the space of 12 or 14 years, in not obtaining infeftment, nor charging the superior, nor using diligence, to recover the possession by action of mails and duties, or otherways, the posterior voluntary disposition was preferable, because such apprisings are presumed to be simulate for the debtor's behoof. The same is decided in Durie, 4th July 1627, Hamilton against M'Culloch*. In that same cause, an inhibition was sustained, though not execute at the market cross of the regality of Killymuir, because it was published in the Usurper's time, who abolished all regalities, though it was alleged his authority could not change acts of Parliament; and, that even in the English time, they were in use to publish inhibitions and other diligences at the regality market cross.
Fol. Dic. v. 1. p. 262. Fountainhall, MS.
* There is no such case in Durie as Hamilton against M'Culloch. The case referred to may, perhaps, be Hamilton against Tenants of Drumrash, p. 843. of Durie, voce Jus tertii.
