A preferable creditor can do no voluntary deed to prefer one secondary creditor to another; and if he take payment out of one subject, he is bound to assign to postponed creditors.
Scotland v. Bairdner
Date: 3 January 1696 Case No. No 22.
A person had an infeftment affecting a whole subject. A liferentrix had an infeftment affecting the half, but posterior. The first had also an assignation, but posterior to the liferenter's right. In these circumstances, he was not bound to assign in prejudice of his adjudication.
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Philiphaugh reported Mr William Scotland, the chancellor's chaplain, against Thomas Bairdner of Cultmilne. The pursuer, as assignee by a liferentrix, convenes this defender for his possession of the liferented lands ; who alleges, he has right to two infeftments of annualrent, which being preferable to the widow, exhaust the subject. Objected, These annualrents were universal over the whole ; whereas the widow's liferent was only out of a half ; and the other being sufficient to pay it, they ought to restrict thereto, at least to assign the relict to the other half seeing nemo debet uti jure suo in æmulationem alterius. Answered, In all infeftments of annualrent, unaquæque gleba servit, and the creditor may distress any part of the tenement wherein he stands infeft; yet he acknowledges this is not to be used with rigour and judaically, and that the Lords, in such a case, would ordain the annualrenter to assign where he has no prejudice. But if he have another right upon the rest, law will not oblige him to assign to the prejudice of his separate right; and this defender has right to an adjudication on the other half of these lands, and which being posterior to her liferent infeftment, it would wrong his own right to cause him assign, and involve him in a plea. Replied, If both the debts were originally his own, he might, in that case, protect, cover and defend his lamer right, by extending the preferable one over the whole subject; but if he has acquired and purchased in rights, which of themselves are not preferable, it should be in the power of a creditor, at this rate, by an unlawful gratification, to prefer one creditor to another, who would otherwise be clearly preferable to him, conform to the brocard, si vinco vincentem tunc te vinco, as was determined in the competition among the creditors of Lanton* and Nicolson †. The Lords thought, if he acquired in any such right less preferable post litem motam, after a citation in the multiple-poinding, or after the competition was started, he might be repute in mala fide to make use of such a right, to impede his assigning to the liferentrix; but, if he had got it before, there was no law hindering him to do the same, and to cover it by his better right; and therefore the Lords would not decern him to assign the relict against the other half in prejudice of his adjudication. Then it was contended for the relict, That her liferent was not out of a precise and definitive half, but was general, unius dimidietatis terrarum et molendini; and so not being restricted to an east or west half, but to an half pro indiviso over the whole, and the one half being able to pay this defender the preferable annualrents, she may, without any assignation, recur upon the other half; in which case, he cannot obtrude his adjudication against her, in regard it is long posterior to her right. The Lords thought this a relevant ground to prefer her to the superplus rent after the annualrents were first paid, if her infeftment run in these indefinite terms.
Fol. Dic. v. 1. p. 223. Fountainhall, v. 1. p. 696.
