William Duncan, Merchant in Edinburgh, v. David Miller, Merchant there
Date: 23 July 1713 Case No. No 16.
Found that an inhibition, used by an assignee, would accresce to a posterior assignee, after reduction of the first assignation; if not reduced ex capite fraudis.
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In an action of declarator, at the instance of Jean Livingston, and her husband, against the creditors of John Robertson, (who, as heir to Gilbert Robertson, his father, sold the lands of Whitehouse to Jean Livingston) for purging the lands of all incumbrances, arising from their debts and diligences; there arose a competition betwixt William Duncan and David Miller. William Duncan pretended to be a real creditor for 6000 merks, the remains of the price of the lands owing by Gilbert Robertson to George Aikenhead, his author, per bond.
David Miller claimed preference for the half of the sum of 1400 merks, principal, and annualrents thereof, contained in a bond, granted by Gilbert Robertson to Helen Matthison, in Stirling, assigned by her to Robert Ranie and David Miller, upon this ground: That James Miller, writer in Edinburgh, to whom Helen Matthison had formerly disponed her debt, with a power to alter, did, upon a process for payment against John Robertson, use inhibition for security thereof; which inhibition, now that James Miller's right is reduced, accrues to David Miller, the second assignee; because the power to alter, reserved to Helen Matthison, in her assignation to James Miller, made his right to be of the nature of a factory, or trust, for the cedent; and any diligence done by factors, or trustees, accrues to the constituents, their heirs or assignees. July 14, 1667, Scot against Sir Laurence Scot. (Stair, vol. 1. p. 472. See Trust.) And it has been frequently found, that diligence, used by donators of forfeitures, for securing the subject gifted to them, accrued to the forfeited persons and their heirs, restored per modum justitiæ, without, necessity of assignation, or conveyance, by the donator.
Answered for William Duncan:—James Miller's inhibition cannot subsist in the person of David; because, 1 mo, Though inhibition be, in some sense, a real burden upon the inhibited person's lands, at least becomes such by a posterior adjudication; yet, as to the inhibiter, it is a merely personal diligence, reaching only deeds done to his prejudice; and hath no effect in favours of third parties, not deriving right from him. 2do, Inhibition is effectual to the inhibiter himself, only in so far as concerns the right on which it is founded: Therefore, this inhibition, founded on Helen Matthison's disposition, is without any foundation; now when that disposition is annulled and out of doors. 3tio, James Miller's right was not of the nature of a factory, or trust, but was elicited from Helen Matthison, by fraud and circumvention; and reduced upon that head; so that as James Miller's right was null, ab initio, the inhibition, used by him, was null in consequence. 4to, Granting that James Miller was a factor or trustee; yet the inhibition being used eleven years after that trust, or factory, was revoked by the second assignation, in favours of Ranie and David Miller, intimated by a summons of reduction of James' right, it was simply null, and cannot be effectual to any person.
The Lords found the inhibition accresced to David Miller, the second assignee, reducer of the disposition in favours of James, unless it be made appear that the said disposition was reduced ex capite fraudis; in which case, they remitted to the Ordinary to hear parties procurators.
