Scottish Court of Session Decisions

Subject_1 COMPETITION.
Subject_2 SECT. XIII.

Betwixt Singular Successors, where the Common Author is not Infeft.

John Rule, Son to the deceased John Rule, Chirurgion in Dumfries,
v.
Andrew Purdie Merchant in Edinburgh

Date: 8 December 1710
Case No. No 76.

A naked disposition of lands was found to denude the granter funditus, having himself only a disposition with procuratory and precept; so that nothing remained for him to dispone, by legal or voluntary conveyance; consequently the disponee was preferred to a posterior appriser, who had attempted to complete his right by obtaining infeftment, on the debtor's original procuratory.

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Martin Newal, merchant in Dumfries, made a disposition, containing a procuratory of resignation of a tenement of land in that burgh, to James Robson merchant there; who, without being legally infeft, disponed it to John Robson his brother, Andrew Purdie's author, with a procuratory to resign, precept of sasine, and assignation to all writs in his person; and John Robson was infeft in anno 1693; thereafter John Rule, chirurgion in Dumfries, as creditor to James Robson, adjudged from him Martin Newal's disposition, and upon the procuratory therein, John Rule, as heir to the adjudger his father, being infeft, raised a process of mails and duties against the tenants. Andrew Purdie, who derived right from John Robson, compearing for his interest, craved preference; in respect the disposition to his author was anterior to John Rule's adjudication, and did totally denude James Robson.

Replied for John Rule; The disposition to John Robson, Purdie's author, never having been intimated till the present competition, after that John Rule, by adjudging the procuratory in the disposition granted by Newal to James Robson, and infefting himself thereon, acquired the real right, which till then continued in the person of Newal; he, Mr Rule, as having the first complete right, is clearly preferable; For albeit adjudications, which are legal assignations, require no intimation to complete them; yet naked dispositions, as other personal assignations, transmit not effectual rights to the receivers, without intimation, and are preferable according to the date of the intimation.

Duplied for Purdie; A disposition of an heritable right whereon no infeftment hath followed, doth fully denude the disponer, without necessity of infeftment or intimation, The Laird of Anstruther contra Black, No 13. p. 829.; and in the late case Dewar against French, No 12 p. 241. it was found, That Mr David Dewar's first adjudication of lands, to which his debtor had only right by disposition, without infeftment, did quite denude the debtor; and he was preferred to David French, a posterior adjudger, who stood infeft by virtue of the procuratory of resignation contained in the common debtor's disposition. The reason of the disparity betwixt a disposition of land, and an assignation to a moveable bond, is, because the land is properly debtor to one that hath a disposition thereof, and so that disposition wants no intimation to perfect it; whereas, an assignation of a bond must be intimated to the granter, who is debtor, to put him in mala fide to pay the cedent. It is in vain for Rule to plead upon Martin Newal's not being divested by the disposition to James Robson; seeing the question is not betwixt persons deriving right from Newal, who was last infeft, but only betwixt those whose common author James Robson, being never infeft, was sufficiently denuded by his disponing the procuratory to John Robson, before John Rule adjudged; 2do, Esto, that intimation had been necessary to perfect the disposition in favours of John Robson; yet that, being an heritable right, was sufficiently intimated by his public infeftment, and the long debate in the present competition, and several years possession before John Rule's infeftment as heir to his father.

Triplied for John Rule; John Robson's infeftment cannot supply the want of intimation of the disposition in his favours; because sasines are not properly intimations, but only publications of real rights; and though John Robson might, by virtue of the general clause in the disposition to him assigning to all writs, have been infeft upon the procuratory in Newal's disposition; yet he not having taken infeftment upon that, but only upon the procuratory in the disposition, granted by James Robson, (who, being never duly infeft, could give no effectual precept for infefting another,) John Robson's sasine is null, as granted a non habente potestatem; and so cannot be sustained as an intimation of the procuratory in Newal's disposition. Nor can the decison betwixt Dewar and French influence the present case; in respect both Dewar and French were adjudgers; and the first adjudication, being a legal assignation, was a complete assignation without intimation; whereas a simple disposition affords no jus in re, but only jus ad rem, which, though effectual against the granter and his heirs, or against tenants, where no person competes upon a better right, is never complete against singular successors, till sasine follow thereon.

The Lords found, That James Robson, having only a personal right by disposition without infeftment, the disposition made by him to John Robson, Andrew Purdie's author, did fully denude him, without necessity of intimation; so that the subject could not be thereafter adjudged from him; and therefore preferred Andrew Purdie.

Fol. Dic. v. 1. p. 183. Forbes, p. 445.