Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.
1686 and 1687.

Robert Miln of Barnton
v.
The Earl of Annandale and the Other Creditors of Alexander and William Hamiltons of Binny, and Hugh Sinclair

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1686. January 8.—The case between Robert Miln of Barnton, and the Earl of Annandale, and other Creditors of Hugh Sinclair of Binny being reported by Pitmedden; the Lords would not decide it; but gave their opinion, that if Hugh Sinclair's creditors quarrelled Mr John Drummond's decreet of preference to them in 1678, as collusive and of consent of Hugh Sinclair, then they would also loose it as to Barntoun, Mr John Drummond's assignee, and repone him to the benefit of the legal of Alexander Clarkson's apprising, which was restricted in that decreet; for it was unjust to keep him bound by that decreet, and yet to cast it loose to the creditors. Vide 30th March 1686.

Vol. I. Page 390.

1686. March 30.—The Lords, after many hearings, having advised the debate between Miln of Barnton, and the other Creditors of Binny, mentioned 8th January 1686, they preferred Gavin Hamilton, upon his interest produced, to the lands of Inchmahan, not only for the debts and sums of money due by William Hamilton to Alexander Hamilton, sheriff-depute, at the time when he disponed Robert Stewart's apprising to William Hamilton, with a reservation of the said lands; but also for any other debts or sums of money which became thereafter due to the said Alexander Hamilton, sheriff-depute, by the said William Hamilton of Binny, and for which he did become obliged for him; and find, quoad Robert Stewart's comprising, though it was disponed to William Hamilton of Binny, against whom it was led, as lawfully charged to enter heir to his brother Alexander Hamilton, yet that does not extinguish the said comprising, but that it still subsists in the person of the said William Hamilton, and of Hugh Sinclair, and his creditors deriving right from him, at least as a security for the sums due on the said comprising. And find the disposition made by William Hamilton, in favours of Hugh Sinclair, of the lands of Binny, after the using of an inhibition against the said William Hamilton, at the instance of Clarkson, reducible ex capite inhibitionis. And find the apprisings acquired by Hugh Sinclair, of the estate of Binny, during the time he was factor for William Hamilton, redeemable at the instance of Sir Robert Miln of Barnton, for the sums truly paid out by Hugh Sinclair for acquiring the said apprisings; and allow the creditors' oaths to be taken, ex officio, from whom Hugh Sinclair acquired right to these comprisings, what were the sums he really depursed in acquiring thereof: though it was contended by Hugh Sinclair's creditors, that his being factor was not like a tutory to make these rights accresce to the constituent, but, at most, there was only a personal obligement on him to denude, which should not operate against them who were singular successors. And the Lords found the allegeance relevant against the haill apprisings standing in Hugh Sinclair's person, that they were satisfied by intromission with the rents of the lands or sums of money, or sale of lands belonging to Binny, within the years of the legal, viz. the intromissions to be proven prout de jure, and the sale of the lands to be proven scripto by production of the dispositions. And repel the qualifications of trust condescended upon, that the apprising led at the instance of Robert Stewart, was, from the beginning, for the use and behoof of William Hamilton of Binny against whom it was led. And remit to the auditor to rank the creditors, and to discuss all the objections against the other particular rights produced. Vide 19th July 1687.

Vol. I. Page 410.

1687. July 16. —In the case of Sir Robert Miln of Barnton against the Earl of Annandale, and other creditors of Alexander and William Hamiltons of Binny, and Hugh Sinclair, mentioned 30th March 1686, it was further alleged, that Barnton, by a minute of contract with Hugh Sinclair, was bound to acquire his rights at 16 years' purchase; ergo he cannot obtrude the legal of Clarkson's apprising to exclude Hugh's creditors, nor use it farther than for security of the sums he gave for it.

Answered,—1mo, The creditors must fulfil the minute, if they crave the benefit of it. 2do, It cannot accresce to the creditors; for the maxim, jus superveniens auclori accrescit successori holds only in voluntary rights, where an adequate price is paid, but not in the acquiring of diligences upon lands of a far greater value than the sum of the diligence. See Stair's Institutes, tit. 24. It was referred to Castlehill to hear both parties.

Vol. I. Page 467.