Scottish Court of Session Decisions

Subject_1 COMPETITION.

Creditors of Campbell
v.
Earl of Lauderdale

1753, July 27.
Case No. No. 11.

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November 1713 the then Earl of Lauderdale sold Glassery to Sir James Campbell, but being advised not to represent his predecessors, the method devised was, that Sir James shonld purchase certain diligences by adjudication and other debts affecting the lands, after the said debts should be adjusted between the Earl and the creditors; and these rights being conveyed to Sir James, thereby to have right to the lands for ever, without being quarrelled by the Earl, his heirs and successors,—who was also to cause John Corse renounce some adjudications that he had right to, but truly in trust to the Earl, and to cause the Countess his mother and the Countess his Lady renounce their infeftments. The price of the lands was ascertained, and Sir James was to pay the half at Whitsunday 1714, which was declared the term of his entry to the lands, and was to give security for payment of the other half at Martinmas 1715; and if the price exceeded the sum to be paid to the creditors, whose rights Sir James was to purchase, then the surplus was to be applied for payment of the other creditors to be named by the Earl, or to be paid to the Earl himself,—and a contract was executed between them in these terms.—19th June 1714 The Earl granted Sir James an obligation, bearing that Sir James had acquired rights and diligences to the full value of these lands,—therefore he obliged him, his heirs, &c. never to quarrel or impugn directly or indirectly the rights and diligences acquired by him, or that he should acquire, for securing to him the said lands, but that he and his heirs may enjoy them for ever. Notwithstanding this last deed there still remained a balance of the price unpaid, as appeared by Sir James's creditors many years after; but it did not appear what that balance was. In the ranking of Sir James's creditors, Earl of Lauderdale craved to be preferred upon the price.—Answered: By the law of Scotland a seller after he is denuded has no security or hypothec for the price, and the Earl was denuded by the diligences acquired by Sir James and the Earl's obligation never to quarrel them, which was equal to a ratification.—Answered: John Corse's adjudications are preferable to the diligences acquired by Sir James, and although on payment of the price the Earl was obliged to cause Corse renounce them, yet he cannot be obliged to perform his part of the contract till Sir James or his creditors perform theirs; and quoted our decision 5th December 1746, Graham against Creditors of Trail, (No. 7. hujus tituli.)—Answered: That that decision cannot apply: The question there was, Whether Trail's back-bond was not a good defence against Graham's obligation of warrandice, which doubtless it was, or 2dly, Whether a personal disposition by Graham's wife with his consent and taking burden on him for his wife, whereon no infeftment either did or could follow, would carry two infeftments of annualrent afterwards purchased by Graham as jura supervenientia auctori, and which he purchased agreeable to the covenant of parties, whereby the purchaser was to retain part of the price till, the incumbrances were purged; and the Court there thought that an infeftment of annualrent could not accresce to a personal disposition, which does not apply to this case. The creditors do notneed the contract 1713. The obligation 1714 not to quarrel Sir James's rights was an effectual renunciation of any adjudication in his own or in Corse's person. However the Lords found the Earl preferable for the balance yet due of the price—me quidem renitente.