Scottish Court of Session Decisions

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

The Earl of Northesk
v.
Sir Patrick Hepburn

1685. March.

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In a competition between Sir Patrick Hepburn, who adjudged, without taking infeftment, Dougal M'Pherson's adjudication of some lands, whereupon no infeftment had followed, and my Lord Northesk, who two years after also adjudged from Dougal, and took infeftment;—Alleged for Sir Patrick, That an adjudication without infeftment, being transmissible by assignation, an adjudication thereof is a legal assignation, carrying the right, and needed no infeftment. Answered for Northesk, That not only had Dougal an adjudication, without infeftment in his person, but Sir Patrick, before his own adjudication, stood infeft in a right in trust for Dougal, so as Dougal, the common debtor, must be considered as having infeftment in the lands; and therefore Northesk's adjudication being completed by infeftment, it is the first effectual right; and Sir Patrick's, though prior, can only come in pari passu. Replied for Sir Patrick, Esto the infeftment was intrusted for Dougal,—the right, in his person, by the back-bond, not being real, but only a personal obligement to force Sir Patrick to denude, the same fell under Sir Patrick's adjudication, which needed no infeftment to complete it; and Northesk, being without year and day, could not come in pari passu. The Lords sustained the allegeance made for Northesk; which is irregular.

Page 77, No. 314.