In a competition among creditors, an heritable bond was objected, to as wanting some of the necessary solemnities.
Answered, The debtor had homologated it by assigning to the creditor the rents of his lands, in which assignation he had recited the heritable bond.
The Lords repelled the defence of homologation.
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An heritable, bond granted to David Liddel for 16,600 merks, docqueted thus, “Written by William Wishart notary at Fintry, and subscribed before these witnesses, the said William Wishart and Thomas Wishart,” being objected to as null, in so far as it did not design both the witnesses; the creditor pleaded homologation by an assignation by the granter to him of the mails and duties of the lands contained in the heritable bond for payment of his annualrents which fully recited the heritable bond, and fell to have been part of it, written of the same date with the heritable bond, by the same writer, and signed by the same witnesses, and wherein both their designations are expressed thus, “Written by William Wishart notary in Fintry, and subscribed before these witnesses, the said William Wishart, and Thomas Wishart his son.”
But it was nevertheless found competent to the creditors competing to object the nullity of the heritable bond.
It was a point upon which the Judges are not of one opinion, how far deeds, void for want of solemnity, are capable of homologation. Although there be some decisions sustaining it, yet it was never found in any case that homologation was good in a competition.
Fol. Dic. v. 3. p. 274. Kilkerran, (Homologation.) No 2. p. 255.*** This case is reported by C. Home:
The Said David Liddel being creditor to Andrew Dick by an heritable bond, in order the more easily to obtain payment of his debt, purchased an assignation to a minute of sale of Dick's lands, from one Forrester, whereby Liddel became debtor to Dick in the price of the lands. Dick's creditors having used diligence against him by hornings, inhibitions, arrestments, Liddel called them all in a multiple-poinding; whereupon a competition having ensued, Dick's creditors objected to Liddel's heritable bond, that one of the subscribing witnesses to it was not designed in the body of the bond, consequently it was null by the act 1681; the clause, requiring the solemnities of the act, running in the following terms: In witness whereof, I have subscribed this and the two preceding pages, at Clachan of Fintry, written by William Wishart, notary at the Clachan of Fintry, before these witnesses, the said William Wishart and Thomas Wishart.
Answered; Such nullities have been found suppliable by acts of homologation; and here a strong one occurred, viz. an assignation to the mails and duties of the lands granted by Dick to Liddel, wherein the heritable bond is fully recited, and of even date with it, and which was written by the same writer, and had the same witnesses, and ought to have been a part of it; and here Thomas Wishart is designed ‘son to William Wishart notary in Fintry.’ If indeed Dick had been brought under any disability by his creditors, betwixt the date of the heritable bond and the assignation to the mails and duties, there might have been ground to have made a distinction betwixt the debtor and his creditors, with respect to the effect of the nullity and act of homologation; but as they were both executed unico contextu, there is no room for such a distinction. See 17th Feb. 1715, Sinclair, against Sinclair, voce Writ; 29th Feb. 1732, Suddy, see Appendix; 21st January 1735, Blackwood, see Appendix.
The Lords found it competent to the creditors, competing with the pursuer for the price, to object the nullity.
