Subject_1 ARRESTMENT. Subject_2 What Subjects Arrestable.
Stewart of Torrence v. The Creditors of George Dundas
Date: 20 February 1706 Case No. No 42.
An heritable bond, on which infeftment had followed, but not registered in terms of act 1617, was found arrestable, and the arrester preferred to a posterior adjudger of the bond, though the sixty days allowed for registration were not run, so that the arrestment might have been evacuated by registration thereafter.
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Torrence, as a creditor to George Dundas, arrests in the hands of Bonhard, who was debtor to the said George in L. 10,000 or thereby, by an heritable bond.
Compearance is made for other creditors of the said George, who adjudged the same, as being heritable; and alleged the same was not arrestable, because infeftment was taken thereon before the arrestment.
It was answered: The infeftment was null as to Torrence, a third party, because not duly registrate; for the act of Parliament bears, that sasines not registrate make no faith in prejudice of a third party.
It was replied: Sasines not registrate are not simply null, being good against the granter; and even as to third parties, the full clause in the act of Parliament is not repeated, which provides that the same shall make no faith in prejudice of a third party who hath acquired a perfect and lawful right to the said lands and heritages: which cannot be subsumed in Torrence's case; and 24th March 1626, Gray contra Graham, No 1. p. 565. in a competition betwixt an arrester and a party infeft, where the sasine was not registrate, the infeftment was preferred upon this very allegeance, that the arrester had not lawfully affected the lands, whereof he craved the mails and duties, 2do, This arrestment was within the 60 days allowed for the registration of sasines; so that, at the time of the arrestment, there was no defect or ground of objection against the same, and being once preferable, no posterior neglect could give the arrestment a preference.
It was duplied: The sasine unregistrate can never make faith in competition with the arrester, because he has lawfully affected the subject of the competition viz. the principal sum due by Bonhard to Dundas his debtor; for if there had been no infeftment, then the principal sum was affected, and the property transferred by the arrestment, in the same way as if Dundas had voluntarily assigned the same with the precept of sasine, and that Torrence as assignee had taken infeftment; in which case the former unregistrate sasine could not compete, no more can the same be effectual against the arrester, who is a legal assignee. From whence the difference betwixt this case and that remarked by Durie is clear; for there the subject of the competition was only the mails and duties of lands, which lands were not affected with arrestment: Besides, there were many other grounds in that practique which might have influenced the decision, for the purchaser had a disposition and possession, and the tenants enacted to pay him the rents in controversy. 2do, It imports nothing that the arrestment was within the 6o days; for without registration, it is never compleat; but registration in due time is drawn back to the date of the infeftment.
The Lords 'preferred the arrester.
Fol. Dic. v. 1. p. 55. Dalrymple, No 74. p. 94.*** The same case is thus reported by Forbes:
In the competition betwixt Alexander Stewart of Torrence, and Walter Stewart of Pardovan, as creditors to Bonhard and George Dundas, The Lords, 26th June 1705, having found Pardovan's adjudication of an heritable bond granted by Walter Cornwal of Bonhard, to George Dundas merchant in Leith, preferable to Torrence's arrestment thereof; in respect the citation in the adjudication was prior to the arrestment, though the decreet was posterior: Torrence did thereafter insist for preference upon the priority of his arrestment against the other adjudgers, who could not plead the circumstance of an anterior citation.
Alleged for the adjudgers: Torrence's arrestment was not to be respected, because infeftment had followed upon the heritable bond, which rendered the subject not arrestable.
Answered for Torrence: That the instrument of sasine was null as to him, a third party, through not being registrated conform to the act of Parliament 1617.
Replied for the other creditors: That an unregistrate infeftment is not simply null, but valid as to some effects, and is good against the granter and his representatives; and therefore the subject was thereby rendered incapable of arrestment. Yea, the heritable bond not being arrestable the time of the arrestment, by reason of the sasine; the inhabile diligence could not there-after revive through the neglect of registrating the sasine within 60 days, which were but half run at the time of using arrestment. Nay further, that the sum was heritable and not arrestable, appears from hence, That it could not have been transmitted by George Dundas, the creditor's death, to his heirs, without a special service, or precept of clare constat. Nor can the nullity of an infeftment in lands be objected by any who have not a real right themselves, 24th March 1626, Gray against Graham, No 1. p. 565.
Duplied for Torrence: The sasine is as much null quoad him, as if declared null to all intents and purposes; he not being in the case of those against whom it can be effectual. And there is no necessity for Torrence to plead, That his arrestment revived by neglect of the registration within 60 days; for his arrestment was certainly good ab initio. True, the due registration of the sasine, within 60 days after arrestment was used, would have evacuated the arrestment; but the sasine unregistrate was never a legal compleat deed whereupon to compete with a third party. 2do, Tis owned that the sum, null as the sasine is, is heritable, and would not have passed to the heirs of George Dundas, without a service; but then the same is still arrestable quoad Torrence, a third party; for a null sasine, and no sasine, are much the same. And since the act of Parliament 1617, declares an unregistrate sasine to make no faith in judgment; this is as strong as any certification in an improbation would be. To pretend that the sasine is good against the arrestment, because it was valid when the arrestment was used, and might have been registrate at any time within a month after the arrestment, is but to cavil; for we are not to regard what might been done, and was not done.
The Lords found the bond arrestable, and preferred the arrester.
