Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Bell of Blackwood-house
v.
John GartshoreMerchant in Glasgow

Date: 22 June 1737

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This case is reported by Lord Kaimes (Rem. Dec. 2—.16 ; Mor. p. 2848.) and by Clerk Home, (Mor. p. 2853.) The circumstances are fully stated in these two reports, to which reference is therefore made.

Lord Kilkerran makes the following observations upon the question which the case involved.

“1mo, 1 have ever held it as a point, that he who first completes the real right, or in other words, he who first denudes the person last infeft, has the preferable right to the lands ; and herein lies the mistake of the advocates for Bell, that they still speak of denuding of the personal right, when truly that is not the question. For the personal right is not the subject of competition ; it is the real right to the lands. What else is the personal right but an obligation on the person last infeft, and a power given to the disponee to denude the granter by a procuratory or precept; and the only question is, who denudes him first; not who gets the first transmission of that power?

“2do, I have ever held this as another principle, that where I purchase a right transmissable by infeftment, the moment I infeft myself, I am as safe from all challenge from any antecedent personal right as if I had first infeft my author, upon purchasing from him, and infeft myself thereafter; and what sense can there be in the contrary doctrine ? It is admitted, that if one have a disposition, with procuratory or precept, when I intend to purchase from him, I, before he grant me a right, take care that he be infeft, though but an hour before my purchase, then I am safe from any antecedent personal deed of his ; but if I take disposition from him, without infefting him, though next hour I should infeft myself, his anterior personal deed will affect me. What sense can there be in that ? As there is no good sense in the distinction, whether the purchaser from one having personal right, first infefts his author, or infefts himself, after his purchase, as it is admitted he is secure, by first infefting his author ; that of itself is a demonstration that the author was not denuded by his former personal conveyance ; for how could he be infeft on the precept, or resign on the procuratory, had he been before denuded ? but do what he can, is it not a consequence that he can empower a second assignee to do the same thing?

“3tio, Suppose the second assignee to the personal right infefts and conveys, that purchaser is safe ex concessis. But upon what foundation can that be true, if his author derived his right a non habente? It is no answer, that the purchaser from one infeft is safe because he purchases upon the faith of the records; for I know no statute that provides that a purchaser on the faith of the records is safe : no law has said so. Certain deeds are not effectual against purchasers, if not recorded. But if any deed be of its nature effectual, which the law has not required to be recorded, it will remain effectual, and be a gap in our security from the records: so I take the consequence of the doctrine to be unavoidable, that the purchaser from the second assignee infeft cannot be safe, and consequently our records are no longer a security. The distinction that is put between purchasing from one infeft, and from one not infeft, resolves just in this, that we will stop short, and not contradict the principles of law, in that case also, when disposition is from one infeft; for in reality there is nothing in the distinction.

“4to, A plain circle is the consequence of this denuding doctrine; for should the second assignee of the personal right, infefting, be postponed to the first assignee, yet he will be preferable to a second assignee from the common author; yet a second assignee from the common author, first infefting, will be preferable to the first assignee of the personal right.

“5to, I take the reason why, in personal rights, the first intimation prefers, to be, because it makes the first complete right, and that infeftment in real rights is just what intimation is in personal rights.

As to the decisions, no argument from them for two reasons : First, Not to be followed if they have fatal consequences which cannot be prevented. This is not like the case, determining a disputed point, whereby one may regulate the pleas in time coming; for the inconvenience cannot be avoided.

Second, So far as the decisions are in the case of adjudications, they do not meet, for an adjudication makes the subject litigious.

“Third, As many decisions the other way; at least, that back bonds granted by one having a personal right, do not affect his singular successor infefting before the competition, Brockdolean against Margaret Ferguson ; and the principle is the same.”