Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Bailie Justice
v.
Nisbet and Aikenhead

1683. March.

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In a competition between an appriser and one having right by a disposition of a date anterior to the denunciation, where the obtainer of the disposition had expede a base infeftment thereon, after the decreet of apprising, but before the appriser had charged the superior; which base right was confirmed by the superior after the appriser's charge;—it was alleged for the receiver of the disposition, That he, having the first complete real right, ought to be preferred to the appriser, whose apprising and charge against the superior was but a diligence; for, though a charge be equivalent to infeftment, in a competition of diligences of the same nature, viz. apprisings and adjudications, it hath not that effect where a comprising competes with a voluntary right. 2. As the disobeyed charge did not infer contempt or mora in the superior, unless the appriser had offered a charter and a year's duty, nor would hinder him from nonentry, ward, marriage, &c. upon the death of the debtor, far less could a stranger-purchaser, who is completing his diligence, be prejudged by the charger, who is only obliged to notice what diligence is real and upon record. 3. Though it may be pretended that the legal diligence is favourable, a buyer's case is more favourable; for it were harder to disappoint a purchaser, who pays a real price that may be affected by the seller's creditors, than to frustrate the diligence of a compriser, who is at no greater loss thereby than he had before. Answered for the appriser, A charge against the superior is esteemed equivalent to infeftment, as to all effects except removing; and it was not in the power of the superior, after he was charged, to prefer a voluntary right. The Lords preferred the disposition having infeftment and confirmation, in respect the disposition was prior to the appriser's denunciation; and so there could be no suspicion of fraud in the receiving thereof.

Page 68, No. 289.