Litigious by Infeftment. - By using an order of Redemption. - By Inchoate Inhibition.
Bairdy v. Henderson
Date: 3 July 1688 Case No. No 92.
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One Brown having by a minute of sale obliged himself to dispone a tenement to Henderson, and having upon the 16th July disponed the same for onerous causes to Bairdy, who was a communer at the bargain with Henderson; and upon the same day Henderson having signed an inhibition against Brown upon the minute, which was executed the 17th day, he raised reduction of the disposition to Bairdy ex capite inhibitionis, in so far as his inhibition, which was inchoate upon the 17th day, could not be prevented by Bairdy, who was witness to the first minute, and Brown being guilty of making double alienations, Bairdy, who was particeps fraudis, ought not lucrari thereby.
Answered, Purchasers by way of commerce are only obliged to notice what is in the registers, and are not put in mala fide by private knowledge, though inchoate diligence be effectual to hinder gratification.
Replied, An executed inhibition is sufficient to reduce rights granted between the execution and registration; February 12. 1675, Cruickshanks against Watt, No 90. p. 8393.
The Lords found that the inchoate diligence by signing the letters and private knowledge, does not stop commerce, though it would hinder gratification.
Fol. Dic. v. 1. p. 559. Harcarse, (Inhibition.) No 641. p. 176.
