If Inhibition strikes against Renunciations, Recognitions, or Conditional Alienations.
Sir John Falconer v. John Ballantyne
1687.
July. Case No. No 113.
Where an inhibited person had disponed with consent of the superior, a deed inferring recognition by the disponee, was found not to prejudge the inhibiter, because quoad him the disposition was understood to be null.
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In a declarator at the instance of Sir John Falconer, as donatar of recognition of Provost Græme's lands, compearance was made for one John Ballantyne, who alleged, That he had raised reduction ex capite lecti, of Provost Græme's right, as flowing by progress from George Rome, after he stood inhibited by the defender's father.
Answered, Inhibition giving no jus in re, the right of the lands was validly transmitted to the Provost, who being vassal, was capable to commit the deed of recognition, whereby there is jus quæsiturn to the superior. And it was found in Powrie's case,* that inhibition whereupon the creditor had no real diligence, did not hinder recognition.
Replied, Though inhibition did not hinder the transmission of a real right, as to all effects, but only in so far as prejudicial to the ground of the inhibition, yet the right is transmitted cum suo onere, quia nemo plus juris tribuit quam ipse habet, and the cited practique does not meet; for in Powrie's case recognition was incurred by a person inhibited, who was full and unlimited vassal to the superior. But here the feu being transmitted after inhibition cum onere, Græme can only be considered a vassal as limited by the inhibition against this author, who could not by his deed prejudge the same; for if Græme's ward had fallen, and thereafter his right had been reduced ex capite inhibitionis, the inhibiter doing real diligence against the land, would certainly have access thereto, unless the donatar of the ward did purge the ground of the inhibition. And if inhibition would exclude the superior from the ward profits, which arise from
* The case alluded to is Hay against Creditors of Murie, No 61. p. 6470.
the nature of the holding as a reddendo, multo magis would it prefer to casualties arising upon feudal delicts, which is causa pænalis. It would have the like effect against liferent escheats. And the special privilege of quinquennial possession, by virtue of forfeiture for treason, arises from a particular law ob bonum publicum; to which all interests must cede.
Duplied, In Powrie's practique, not only Muirie, who did the deed inferring recognition, was inhibited, but also Ramsay his author. And the argument of disparity urges as strongly against the practique, why inhibition should stop all recognitions.
Triplied, The inhibition did secure the inhibiter, as well as if Rome had transmitted the right with the burden of Ballenden's debt. And the interlocutor in Powrie's case, where it seems determined, that the purchaser of the lands after inhibition did recognosce them in prejudice of the inhibition, is but a single decision, and not clearly debated; nor could any ward lands be secure by inhibition, if the inhibited party might, notwithstanding the inhibition, effectually dispone, and the new vassal recognosce them by his deed. But the truth is, the acquirer is not vassal, in quantum the inhibiter is prejudged. And though an heir who succeeds by law may dispone or recognosce, notwithstanding of a personal inhibition served against his predecessor, that is not a singular successor by a voluntary right.
The Lords found, That the inhibition hindered recognition. See act 15th, Parliament 1686.
Fol. Dic. v. 1. p. 475. Harcarse (Recognition.) No 829. p. 236.
