Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Cunnyngham of Corsehill's Creditors v. Cunnyngham of Robertland
1698.
February18and
June21.
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February 18.—In the ranking of the Creditors of Cunnyngham of Corsehill, and Cunnyngham of Robertland, this important controversy occurred:—Corsehill's creditors claimed the lands of Robertland, because Corsehill, their author and debtor, stood publicly infeft therein under the Great Seal.
Answered by the Creditors of Robertland,—Corsehill gave a back-bond declaring his right was but in trust; and Robertland continued the whole time, for the space of many years, in possession of his own estate, and was reputed heritor to the view of all the country; so the creditors of Corsehill could never lend their money on the faith of his being infeft in Robertland.
Replied,—A back-bond does affect a real right aye till infeftment pass; but, after that, it is reputed no more but a mere personal obligement, effectual against the granter and his heirs, but noways against his singular successors, who, seeing their debtor publicly infeft, are not concerned in any such trust; nor can they, per rerum naturam, know it, these latent back-bonds going to no register. See 20th June 1676, Brown against Smith; and Stair's Instit. b. 3. tit. 1. num. 21.
The Lords observed a manifest pugna in this case betwixt the αχσιοδιχαιον and the επιχεια; the strictum jus on the one hand, and equity on the other; which was much properer for a parliamentary decision; therefore they deferred the hearing and determining it till June, that if a Parliament intervened they might apply.
Vol. I. Page 826.
June 21.—The Lords advised the competition between the Creditors of Cunnyngham of Corsehill and Cunnyngham of Robertland, about the estate of Robertland, (mentioned 18th February 1698.) Corsehill acquires an old apprising on the lands of Robertland, and grants a back-bond, declaring the trust, and obliging himself to denude at the sight of some particular person. Corsehill was infeft, and the apprising expired in his person, without any order of redemption. Both of them being broken with cautionaries, the Creditors of Corsehill, who had also adjudged Robertland, finding their debtor infeft therein, pursue for the mails and duties of these lands. Robertland and his Creditors oppose, and urge that the trust is not only instructed by the back-bond, but is notour to all that country; and Robertland always continued to possess his own estate, and Corsehill never pretended any right to it.
Answered,—Back-bonds are but personal rights, and can never militate against them who are singular successors to the granter. It is true, so long as an apprising or adjudication is current within the legal, and is not perfected and made public by infeftment, then such a private incomplete right as a backbond may restrict, qualify, or affect it; but after a real right, whether voluntary by an absolute disposition, or legal by apprising or adjudication, is perfected by infeftment, and the legal expired, there it would subvert all the public records and securities of the nation, if a back-bond should meet the creditors or singular successors of that trustee who gave the back-bond; so the receiver of the back-bond has nothing but action against him whose faith he followed, and cannot affect the lands disponed or apprised, where it is completed by infeftment or expiration of the legal.
See Stair's Institute, lib. 3. tit. 1. Of Assignations, num. 21st; and June 20th 1676, Brown against Smith; and Mackenzie's Institute, Book 2. tit. 3. See also 5th February 1678, M'Kenzie against Watson, where a backbond of the date is sustained against an arrester. This case is an eminent instance where favour and equity plead one way, and strict law the contrary; and it were safer, that either latent back-bonds should operate against none but the granter and his heirs, or else to be ordained to be registrate as reversions, and to be effectual as real rights against all singular successors whatsoever, that the lieges may not suffer by splitting on rocks they could not foresee; otherwise no remedy is left but to recur on the personal warrandice of the granter, which, in process of time, through diligences done against him, may not be worth a sixpence; to which the only answer is,—caveat emptor, qui scire debet conditionem ejus cum quo contrahit.
