Sir William Cockburn v. Creditors of Thomas Calderwood
Date: 16 December 1725 Case No. No. 11.
Price of lands, Whether a surrogatum for the lands?
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Alexander Martin being creditor upon the estate of Ryslaw by infeftment for upwards of £.30,000 Scots, the right after his death was adjudged by Doctor Hay and Thomas Calderwood, two of his creditors, in the year 1695. Thomas Calderwood, upon the title of Martin's infeftment, carried on a sale of the estate of Ryslaw, and got himself in effect ranked sole creditor, and at the same time became a purchaser; in which process Doctor Hay was at first called, but he died during the dependence, and there was no transference against his heirs, nor appearance made for them. Thomas Calderwood, immediately after the purchase, without being infeft, sold the lands to Mortonhall, and made over his decreet of sale. Mortonhall paid some part of the price, retaining the remainder in his hand, for which he granted bond, with a quality, That neither principal nor interest should be paid till certain incumbrances were purged, particularly Doctor Hay's adjudication. Sir William Cockburn acquiring right to this adjudication, insisted in a declarator against Thomas Calderwood's heirs and executors for having it found, that he had a right to a share of Martin's infeftment, in proportion to the extent of his adjudication, and ought to be paid at least pari passu with Thomas Calderwood; and in respect that Mortonhall got the lands affected by Martin's infeftment, made over to him by Thomas Calderwood, and had the price thereof still in his hands, therefore he should be decreed to make part thereof forthcoming to Sir William, that price being a surrogatum come in place of the land itself, and being still in medio, not divided amongst those who had an interest in the land. Against this declarator it was objected, That Calderwood having purchased the lands of Ryslaw at a public roup, these lands were thereby disburdened of all the bankrupt's debts, and consequently of Sir William's claim; and that, although Calderwood had not made any actual payment of the price, yet, he being himself sole creditor, and likewise sole purchaser, there was an extinction confusione, which is equivalent to payment; and that therefore Sir William Cockburn had only a personal action of repetition against Thomas Calderwood, and could not affect the price of the lands in Mortonhall's hands, otherwise than by arrestment, or confirmation as creditor to Thomas Calderwood, the effect of which would be, That Sir William would be entirely cut out by Thomas Calderwood's creditors, who have done diligence, or got assignments for security of their debts. The Lords repelled the objection against the declarator, and found that Sir William has right by progress to part of the sums in Mortonhall's bond effeiring to Sir William and Thomas Calderwood's rights in Martin's debt, and that the sums in the said bond are to be considered as part of the price of the lands of Ryslaw, due at the sale thereof.
Fol. Dic. v. 2. p. 414.
*** See a case between the same parties, No. 18. p. 5182. voce Grounds and Warrants.
