Scottish Court of Session Decisions

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

Lord Tarbat
v.
The Creditors of Cromartie

Date: 1 February 1688

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The Lord Tarbat, a considerable creditor upon the estate of Cromartie, having raised a sale thereof upon the Act of Parliament, and bought the same at the roup, he craved an extract of his decreet of sale. Alleged by some creditors, That all the common debtor's lands were not rouped, and the remainder, being only fractions, would not go off at so good a rate as if they had passed with the whole. 2. Some having rights transcendant over all the estate, and others having particular localities, it was recommended to the Lords to determine how the price should be distributed; and it was offered, as a just and equal method, that, after payment of the transcendant right as preferable, the remainder of the price should divide pro rata of the debt due out of the distinct localities, where there cannot be prior or posterior among rights upon different lands. Alleged by other creditors, That the best rule would be this:—if there were no transcendent right at all; or, if the rest of the estate, beside the special localities, were sufficient to satisfy the transcendant right, without encroaching upon any of the localities, then the creditors of the special localities should be satisfied, pro rata of their debt; but, if the transcendant right did encroach upon the localities, then the creditors in the localities should be preferred to the price, according to the priority of their right. The Lords found the defence, that all the debtor's lands were not rouped, not competent now after the roup and the lands sold; but ought to have been proponed when the rental was to be proven, especially seeing the Act of Parliament allows the sale of the whole lands, or a part of them: They found also, that, where there is no transcendant right, or such a one as does not encroach, &c. the debt upon the special localities is to be paid pro rata debiti, unless one of the special localities be not a full security for the debt upon it; in which case it is only to be considered quoad valorem. But they found, that, where there is a transcendant right encroaching upon the special localities, these localities are to be preferred according to the antiquity of their respective infeftments; 1st February 1688:—Although by this means the creditor, by the last right, might chance to be wholly cut off from payment, and yet behoved to lose his security by the locality to which the other had no right; which seems hard, since the Act of Parliament appoints a legal vendition, without consideration of the preference of right. And, as the creditor, having the transcendant right, might have affected the posterior locality, and suffered the other locality to be free, so law may justly do it. Some of the Lords were of opinion, that the creditor, having the transcendant right, should communicate it quoad the lands not sold to the creditors having special localities, that they might have a title to these lands, to make up the prejudice done to them by the transcendant right, and might be preferred to creditors having posterior rights, or to personal creditors, who, upon a diligence, would come in within year and day. In this process, it was also found, that creditors having real rights, though they got but payment, should assign with warrandice from fact and deed, and that it was not enough for them to renounce; and that the expense of the roup and process should come off the creditors who got payment, pro rata of the payment.

Page 262, No. 935.