Scottish Court of Session Decisions

Subject_1 COMPETITION.

Creditors of Mr Paterson, Competing.

Date: 10 January 1738
Case No. No. 5.

Annualrenters, &c.

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Lord Prestonhall, in 1710, disponed his estate to Lord Roystoun, under backbond for certain uses, with procuratory and precept. Lord Roystoun, in 1715, with consent of Fraserdale, sold the estate to Mr John Paterson, and disponed it, but without either procuratory or precept, only he assigned to him the procuratory and precept in Lord Prestonhall's disposition, but Mr Paterson never was infeft. In 1716, Lord Roystoun, without his own knowledge, was infeft on Lord Prestonhall's precept. In 1729 Mr Paterson granted several heritable securities, rights of annualrent, and assigned to them Lord Prestonhall's procuratory and precept, that had been assigned to him by Lord Roystoun as above; and they were infeft base upon the precept, not knowing that it had been already executed in Lord Roystoun's person in 1716; and Mr Paterson died bankrupt in terms of the act 1696, about 1732 or 1733. These annualrenters having discovered the defect of their infeftments, they anno 1733 took a decreet before the Sheriff of Edinburgh, against Lord Roystoun to infeft them, founded on the obligement of style in his disposition to Mr Paterson, obliging him to infeft him, and to which they had right; and in obedience Lord Roystoun granted them precepts of sasine whereon they were infeft, and they adjudged likewise in implement of Lord Roystoun's disposition to Mr Paterson. Other two personal creditors adjudged from Mr Paterson's heir upon decreets cognitianis causa, viz. Bethune of Kilconquhar and Mrs Sinclair; but a third class not only adjudged from Mr Paterson's heir, whereby they carried the procuratory in Lord Prestonhall's disposition that had not been executed, but also expede a charter of resignation and adjudication upon that procuratory in the person of their trustee Kilconquhar, who was thereupon infeft; and in the competition, the Lords found that the heritable bonds fell not under the act 1696. The reason was, that Mr Paterson the bankrupt's right remained still personal, and was effectually conveyed by his personal assignation, agreeably to the decision Colonel Charters against creditors of Blair decided I think about 1731.* 2do, They found the infeftments given by Lord Roystoun in 1733 not quarrellable on either the act 1621 or 1696. But then as to the superiority of Lord Roystoun's base infeftment, to which the above three classes of creditors had the first complete right by their charter on the procuratory of resignation, the Lords preferred them upon that superiority, notwithstanding the former assignation of that procuratory by Mr Paterson to the creditors annualrenters, (agreeable to the decision in the case of Bell of Blackethouse, No. 3. supra.) Vide. Creditors of Prestonhall, 22d December 1738, voce Ranking and Sale.

* See Dict. No. 262. p. 1239.