A trustee had apprised for behoof of a party, whose creditor again apprised this trust interest. This found no title to the creditor, not infeft, to improve other apprisings of the same property, until a declarator of the trust should be discussed.
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Brodie of Miltoun having apprised Johnston his debtor's lands, and also a back-bond granted to his debtor by a trustee, who had apprised for the debtor's behoof a piece of land belonging to Provost Gray; Miltoun raised an improbation against the other adjudgers of Gray's estate;
For whom it was alleged, That there could be no such process sustained at the pursuer's instance, unless he derived a right from Gray; otherwise people might be put to propale their rights to persons having no interest, upon improbations raised at random, whereby any weakness in men's securities might be exposed to such as would take advantage of them.
Answered for the pursuer; That any person infeft in lands, has good inteterest to call all whom he knows or suspects to have a right thereto, to the effect he may understand the strength of his own right, and purge it from incumbrances; and if the defenders be persuaded that the pursuer has no real interest in the lands, they may suffer a certification to pass at his instance against them; besides, the pursuer having apprised the back-bond of the trustee who apprised Gray's land, Gray may be properly called the pursuer's author.
Replied; Though the back-bond was a ground to declare the trust upon, yet the pursuer could not insist in the improbation, which is the effect and consequence of the real right in the trustee's person, till once the trustee be denuded thereof.
The Lords did not oblige the defender to take a term in the improbation; but ordained the declarator of trust to be previously discussed.
Harcarse, (Improbation and Reduction.) No 546. p. 151.*** Sir P. Home reports the same case:
Francis Brodie of Milnetoun having right to a comprising against Mr William Johnston, and having charged the superior, pursues a reduction and improbation against Mr Francis Elphingston writer to the signet, Mr Robert Scot minister at the Abbey, and others, for reducing of all rights granted to them of the lands contained in the comprising; alleged for the defender, That he could not be obliged to take a term to produce any rights, but such as flowed from the pursuer's predecessors and author, and not of rights flowing from third parties, seeing the pursuer was not infeft. Answered, That the comprising and charge against the superior was a sucffiient title in the reduction and improbation to force the defender to produce not only the rights flowing from the pursuer's authors and predecessors, but all rights of the lands flowing from third parties, a charge against the superior being equivalent to an infeftment; for by that same reason, that a comprising with a charge is preferable to any person that has obtained a posterior infeftment, either upon an apprising or voluntary right; and as those who had obtained a posterior infeftment might pursue a reduction and improbation; so might the pursuer upon a charge against the superior. The Lords sustained the defence, and found the defenders liable to produce rights flowing from the pursuer's authors and predecessors, and not the rights flowing from third parties, in respect the pursuer was not infeft.
It was farther urged for the pursuer, That, notwithstanding the defenders ought to produce the rights flowing from third parties, because there being prior apprisers of the lands, who were infeft, and the pursuer being within year and day of them, and so coming in pari passu, it is declared by the act of Parliament, that the benefit of that infeftment upon the prior apprising doth accress to the posterior apprisings, in the same way and manner as if one comprising were led for both sums; so that seeing the first appriser who is infeft, may pursue a reduction and improbation, so may the pursuer, as having the benefit of his infeftments. Answered, That the benefit of an infeftment upon the first apprising does only accresce to the other auprisers that comes in pari passu, to give them a proportionable share of the mails and duties of the land, as if one comprising had been led for all the sums; but none can pursue reduction and improbation but he that is infeft; and albeit the defenders were obliged to produce, yet they are not obliged to exhibit the comprising led by the defenders upon assignations to debts by Mr William Johnston the common debtor, in respect these being only personal, assignations to moveable sums, and the comprising being led by the defenders after they had obtained the assignation from Mr William Johnston, the pursuer's apprising cannot be sustained as a ground or title to force the defenders to produce these apprisings, albeit of these same lands. Replied, That these apprisings being of the same subject, and the rights of the grounds of the debt flowing from Mr William Johnston the common debtor, the defender ought to produce the same, and then he will be heard upon the validity and invalidity of the rights; as also the debts were assigned by Mr William Johnston to Mr James Elphingston, one of the defenders, upon trust for leading of an apprising to his behoof, at least there was a back-bond granted by Mr James Elphingston after the leading of the apprising, and the benefit of the back-bond and trust will fall under the pursuer's apprising, and there is a conclusion of declarator in the pursuer's summons for declaring the same. Duplied, That the deceased Gilbert Gray Provost of Aberdeen, having disponed a part of his estate in favours of Mr William Johnston, whereupon Mr William is infeft, and Brodie of Milntoun being a creditor to Mr William, he apprises in Watson's name, both Mr William's own estate, and that part of the Provost Gray's estate which was disponed to Mr William in the apprising; he includes several other lands belonging to Provost Gray, which were not disponed to Mr William Johnston; and thereafter Mr William acquires several debts due to Provost Gray, which he assigned to Mr James Elphingstoun, and thereupon deduces an apprising against the remainder of Provost Gray's estate, which was not disponed to Mr William Johnston; which apprising deduced at the instance of Mr James Elphingston, was adjudged by Walter Reid, and disponed to Mr Robert Scot and to Burnet of Lethinty, who are in possession of that part of Provost Gray's estate, that was disponed to Mr William Johnston; so that seeing he had no right to the subject, the defenders cannot be obliged to exhibit the rights of these lands; and albeit Mr James Elphingston's apprising had been deduced to Mr William Johnston's behoof, yet Watson's comprising, to which the pursuer had right, being deduced against Mr William Johnston before Mr James Elphingston's apprising, Watson's comprising could not carry the right of Mr James Elphingston's apprising, which was not then in being, and cannot be extended to posterior acquisitions in relation to different subjects. The Lords ordained Mr Robert Scot, and the other defender, to produce, upon oath, the apprising led at the instance of Mr James Elphingston against Mr William Johnston and Gilbert Gray of the back bond of trust granted by Mr James Elphingston, with the grounds and warrants thereof, as also the adjudications at Walter Reid's instance, led for the behoof of the said Mr James, for evacuating his trust for defrauding of other creditors, with the hail grounds and warrants thereof, that the Lords may know the trust and fraudulent conveyance used by the defenders; with certification, that if they did not produce the said writs, betwixt and a certain day, would grant a term, in the improbation conform to the pursuer's libel.
