Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Dallas, Younger of St Martin's, v. Hugh Cuningham
1696.
January and February.
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1696. January I7.—This was a charge on a clause of a disposition to warrant and purge all real incumbrances which should be detected by searching the registers, and be given in to him in list betwixt and a precise day. The reasons of suspension were, 1 mo. This was but of the nature of a general charge, and so can have no other effect but that of a citation or libel; and so the cautioner in the suspension must be free.
Answered,—This was more than a charge on a common clause of warrandice, being limited to purge, conform to a condescendence, within a day; and the Lords, though they would not engross the list of incumbrances in the bill of horning, yet they reserved it to the discussing of the suspension. But it being alleged,—That the charge, conform to that list, was unwarrantable, because some of the incumbrances he gave up therein were purged, and the extinctions thereof delivered to himself; the Lords ordained that matter of fact to be tried; and, if it was so, found the charge would be thereby rendered unwarrantable, and so the cautioner in the suspension would be free.
The second reason was, his obligement only tied him to purge real incumbrances; which inhibitions were not, seeing they were only prohibitory diligences, and not perfected by infeftment, which is requisite to the constitution of a real right; besides, they were only inhibitions served upon depending processes, which could not be purged till they were liquidated and purified by a sentence finding what was due.
The Lords found inhibitions fell under the term of real incumbrances, seeing they affected lands; but, in regard they were only upon dependences, and so not capable of a present implement by purging, they allowed the suspender to the 1st of August 1697, to clear and disburden the lands of them, either by obtaining a decreet of certification against their grounds and warrants in a reduction and improbation, or by otherwise taking them out of the way. Some urged Bailie Cuningham might be put to find caution to secure against them; but this was laid aside.
Vol. I. Page 702.
1696. February 26.—At reporting of the debate between Mr James Dallas and Hugh Cuningham, mentioned 17th January last, as to that single point, Whether hornings whereon denunciations had followed, were such incumbrances as ought to be purged by Bailie Cuningham, so as to make the charge given to him by St Martins warrantable and subsist; that if the major part of the incumbrances given in by him in a list be yet unpurged, then the cautioner in the suspension to remain bound; otherwise to be liberated if the plurality in the condescendence was purged: It was alleged,—Hornings were not real incumbrances, and had no present existence of distress, no gift as yet being taken thereon. Answered,—They might be gifted; and then a donatar would pursue for mails and duties, and molest the buyers during the rebel's lifetime.
The Lords found they were such incumbrances as might be made real to affect the lands, and ought to come in computo with the rest.
