Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Creditors of Sir Adam Blair of Carberry v. Robert Dickson of Sornbeg
Date: 29 June 1694
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An objection was reported against the roup of Sir Adam Blair of Carberry's estate, in favours of Robert Dickson of Sornbeg, as he who offered most for it.
It was objected, 1st. That John Watson, a real creditor by an adjudication, was not called. Answered,—The Act of Parliament 1681 obliges the pursuer of the sale only to call real creditors who are in possession; for he cannot know others: And though there was a factor here, put in by the creditors, or the Lords for their behoof, yet that did not put him in possession; because non constat if, in the event of the ranking, he would fall to have any share. The Lords found there was no need of calling him.
2do. It was objected, that some pupils, called Leiths, who were infeft in an annualrent, and in possession, by getting payment of their yearly annualrents, were not cited, by the first diligence, to hear the probation of the rental led, which was the principal part of the process, but only cited on the act; and, even then, that only their father, as administrator, was cited, and not themselves; which was a nullity.
The Lords repelled this objection, and found the infeftment of annualrent, being a servitude, could not properly attain possession; and that the citing the father, as tutor, upon the second diligence, was sufficient, seeing he concurred in the roup: and, at most, the Lords thought the omission of not citing one creditor, could not annul the roup and sale in totum, but allenarly quoad that creditor's interest; and, if the buyer was content to stand to the bargain, with the hazard of that creditor's debt, the roup was not to be reversed; for they, turning now one of the most solid securities for conveyance of lands, they are not to be loosed nor overturned upon small informalities and omissions.
