A purchaser of lands at a voluntary roup, is not liable to a personal creditor arresting the price, if he prove that the purchase was made on account of the seller.
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Hepburn of Keith having exposed his estate to a voluntary roup, he prevailed on David Maule to offer on his account, for the same, to a certain extent, and by a letter obliged himself, if the lands fell into Mr Maule's hands, to relieve him of the same,
It happened that Maule was the highest offerer, so the lands were declared to belong to him; and, in terms of the articles, he enacted himself to pay the price. James Watson being creditor by two bills of Mr Hepburn's, arrested the price of the lands in Maule's hands.
In the furthcoming Maule laid his defence upon the above letter; and insisted that he was only a name, an interposed person for Mr Hepburn himself; and as the letter would stand in bar of any claim that Mr Hepburn himself could have made on his account of this fictitious sale, it behoved to be equally available against any of his creditors.
Answered, The defence was of the nature of an extrinsic and personal exception, that the defender was bound by the enactment to pay the price; and though, in a question betwixt the parties themselves, they may be mutually repelled personali exceptione, quia in pari casu potior est conditio possidentis; yet, where third parties are concerned, the law ought to give no countenance to any paction or agreement that is contra bonum et æquum, for that would be establishing wrong by law. And, upon this principle it is, the pactions of this kind, contra fidem tabularum nuptialium, have never been deemed effectual. But, supposing the defence should be sustained, it ought not to be admitted, but upon a full indemnification, and payment of the damages and expenses the pursuer has sustained. No man can avoid the obligation to repair the damage which his own fraudulent practices have occasioned to third parties; and it is not upon the arrestment he pleads to be thus indemnified, because the decreet of furthcoming can go no further than the debt upon which the arrestment was used; but that the defender ought not to be allowed to plead this defence, but upon payment of the pursuer's expenses.
Replied, The demand of expenses was contrary to form, and the nature of the action itself; by which nothing can be recovered, but the debt for security whereof arrestment was used; and surely the expense of this process is no part of that debt; nay, if the defence were repelled, there could be no ground for claiming expenses, unless the defender were found calumnious in making it. Besides, there is no reason to believe the defender acted out of any wrong view in the matter: He did not so much as know Mr Hepburn's circumstances, or that the necessity of his affairs required a sale of his estate; neither can the pursuer suffer any thing by what the defender did; for Mr Hepburn is more than able to pay all his debts; and, so far as the pursuer has expended money for recovery of a just debt, he has good action against his debtor for such expenses; nay, he offers to prove, that the pursuer knew, before the date of the arrestments, that the defender had only offered at the roup on account of Mr Hepburn; so that the expense the pursuer has laid out since that time, must be considered as owing to this mistake in law.
The Lords sustained the defence, but ordained the reclaiming petition to be answered as to the expenses.
C. Home, No 222. p. 365.*** Kilkerran reports the same case:
The estate of Keith being exposed to voluntary roup, conform to articles, whereof one, as usual, was, “That Keith obliged himself, that the lands were to become the property of the highest bidder,” &c.; and several offerers having appeared, who raised the price considerably above what it had been set up at, they were at last all over-bid by David Maule, who was preferred, and declared purchaser. And the creditors having arrested in Mr Maule's hands, and pursued a furthcoming, his defence was, That he had been but an interposed person for Keith himself; who, by his letter of the same date with the sale, had desired him to go the length of 27 year's purchase; and if the lands fell in his hands, obliged himself to relieve him thereof.
This defence the Lords ‘sustained,’ on this ground, that the arresters were only personal creditors, as all Keith's other creditors were; and that none but such as had a real lien on the estate could plead a real interest in the roup. But this much this reasoning supposed, and was expressed to suppose; that in any case where creditors have adjudications, an offerer at a roup preferred, could not avail himself of such private release from the debtor; a practice which was much condemned as contra bonos mores.
