Inhibition has Effect only against Voluntary Rights.
James Gordon of Seaton v. Jean Gordon Lady Linturk, and Others
Date: 16 January 1713 Case No. No 106.
A person halving, after he was inhibited, disponed certain lands to others in implement of an anterior bond of relief, the disposition was sustained.
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In Alexander Irving's contract of marriage with Jean Gordon, he as principal, and the Lairds of Kincussie and Lairny as cautioners, having obliged themselves conjunctly and severally to infeft Jean Gordon in liferent in all and hail the lands of Linturk; Mr Alexander Irving, who made up a title to these lands after the husband's death, granted to Kincussie and Lairny a bond of relief of their cautionry in the year 1682; and in the year 1686, was inhibited by James Gordon his creditor for 1000 merks per bond, who adjudged the lands in the year 1691. Mr Alexander Irving did, in implement of this bond of relief, in the year 1687, dispone the same lands in favours of the cautioners; who being infeft, that same year granted a disposition to Jean Gordon in the terms of her contract of marriage; whereupon there arose a competition for mails and duties betwixt her and her authors, and James Gordon, who claimed preference, in respect that his inhibition was anterior to the disposition made to them, though his adjudication was posterior.
The Lords found, That the infeftment granted to Kincussie and Lairny is sufficiently supported by Mr Alexander Irving's bond of relief, and therefore preferred them.
Albeit it was alleged for James Gordon, That the antecedent personal bond of relief, which imported only an obligement to free and relieve them of any damage they might sustain through their cautionry, if distressed by paying up the jointure, could never support the infeftment after his inhibition, unless the bond of relief had borne an obligement to infeft, either generally or specially. In respect it was answered, That any anterior obligement, whether special or general, is sufficient to secure against the effect of an inhibition, 10th February 1672, Rig contra Beg, No 97. p. 7030.; 22d July 1675, Gordon contra Seaton and others, No 100 p. 7034. Besides, here the obligement to relieve was a tacit obligement to infeft; seeing the cautioners were precisely bound to infeft Jean Gordon, and could not be relieved of that engagement without infefting her.
