Scottish Court of Session Decisions

Subject_1 JUS SUPERVENIENS AUCTORI ACCRESCIT SUCCESSORI.
Subject_2 SECT. III.

To which Successor does the Right accresce?

Competition John Neilson, &c with Murray of Broughton, &c. Creditors of John Gordon of Kirkonnel.

Date: 22 December 1738
Case No. No 23.

If a common debtor grants several infeftments on his estate before he be infeft, and thereafter take infeftment, his creditors must be ranked thereon according to the priority of the dates of their infeftments.

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In the ranking of the Creditors of Kirkonnel, Gordon, the common debtor, having granted several infeftments before he was infeft, the question occurred, Whether his infeftment would bring them in all pari passu; or, if it would accresce to prefer the creditors according to the dates of their infeftments?

For John Neilson, and those who had the first infeftments upon the estate, it was argued, That, so soon as the common debtor was infeft, the same behoved to accresce to them, each in their order, in the same way as if he had been infeft before granting any of the precepts; to make out this, it was necessary to examine the nature of the jus superveniens, and what effect is given to it in law. One dispones an estate, of which he is not proprietor, and the purchaser stands infeft; thereafter, the seller acquires a complete title to the subject; our law says, that there is no necessity for a second disposition; nor, indeed, seems there to be, from the nature of the thing; the purchaser has the consent of the proprietor formally interposed; the subject is delivered to him, and this is all that is necessary to transfer dominion. If, then, there is no necessity of a second disposition and infeftment, after the common author has acquired the right himself, which cannot he disputed, otherwise there would be no such thing as jus superveniens; it follows, that the creditor first infeft must be preferred; because, quoad the common author, who cannot plead the defect of his own right, the creditor's infeftment is unexceptionable a principio. The common author, thereafter, can no more effectually deprive the first creditor of his possession, and deliver the subject to another, than if the property had been his before granting the first infeftment; and the second creditor, who has nothing to plead, but upon supposition that the common author is proprietor, cannot object against the first creditor's right, derived from the same author. In a word, whether the common author's title, at the date of the infeftments flowing from him, was unexceptionable or not, or if he had no title at all, is all the same thing with respect to rights derived from him; the creditor who gets the first infeftment, though he may be unsecure as to third parties, is absolutely secure with regard to his author, and all those deriving right from him.

The present question is a competition among creditors; but let us suppose it were a competition among purchasers, who had each of them got an absolute disposition, with infeftment, to the same subject, from the common author, the same rules must govern that case; for, if they were to be preferred pari passu, the subject behoved to be found a commonty, or common property, which would never go down. See L. 72. Rei Vind. Stair, B. 3. t. 2. § 2. 16th January 1663, Tenants of Kilchattan, No 19. p. 7768.

For Murray of Broughton, &c. it was contended, That all the competing infeftments being null, until the common author was infeft, they could only be validate the moment of his infeftment, and could only be effectual from its date; so that they must all come in pari passu, as if one infeftment had been taken for the whole, seeing the whole were void, in the same manner as if Gordon had no title to the estate; it not being easy to conceive how his infeftment could operate retro, in favour of the first infeftment, all the intervening ones being so many mid-impediments to the retroactive virtue of his. By the operation of the law, a right supervening in the author's person accrues to his singular successor, to whom he had disponed with absolute warrandice, of which there is no doubt, when the question occurs betwixt the author and one singular successor; but, where he had disponed the same subject to different persons, for onerous causes, he is equally liable to all of them to make it good; and the absolute warrandice, competent to the first, being merely personal, cannot be more effectual toward constituting the real right, or accretion of the same, than that which is competent to the second; the title of both is void, as a real right; and, when considered as a personal one, inferring an obligation upon the author to make good the real right, both are upon a level. It is impossible to imagine that the common author, before he was vested, could be denuded; or that a real right could be constituted, before he had any himself; so that, to suppose the other creditors infeftments' good from their date, were filius ante patrem; consequently, it seems absurd that any infeftment flowing from Gordon can be effectual, of a date prior to his own; of course, they must all be preferred equally, as if granted of the very date of the common author's infeftment. See L. 11. § 2. De pign. et hypoth. Voet. tit. Qui pot. in pign. B. 3. t. 2. § 2.

The Lords found, that the creditors ought to be ranked according to the priority of the dates of their infeftments, notwithstanding that their author was not infeft.

C. Home, No. 111. p. 179.

*** See Lord Kames's report of this case, No 99. p. 2895, voce Competition.