Scottish Court of Session Decisions

Subject_1 COMPETITION.

Creditors of Sir James Camppell of Auchinbreck
v.
Earl of Lauderdale

Date: 27 July 1753
Case No. No. 13.

Preference for balance of price of lands remaining unpaid.

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The last Earl of Lauderdale wanting to sell the lands of Glassery, and yet unwilling to represent his predecessors, agreed with Sir James Campbell of Auchinbreck, that Sir James should acquire certain diligences affecting them, after these debts should be adjusted by the Earl and the creditors; and on the purchase of these diligences, that Sir James should thereby have right to the lands forever without challenge from the Earl or his heirs, who was also to cause John Corse, his trustee, renounce certain adjudications of these lands, ahd his mother and Lady to renounce their infeflments; Sir James to pay the half of the agreed price at Whitsunday 1714, the time of his entry, and to give security for the other half, payable at Martinmas 1715, and the surplus of the price over purchasing those debts to be applied for payment of other creditors to be named by the Earl, or to be paid to himself; and 9th June 1714, the Earl granted an obligement, bearing, that Sir James had purchased debts to the full value of the lands, therefore obliging him never to quarrel any rights acquired by him for securing to him the said lands, but that he and his heirs shall enjoy them forever. It appeared by Sir James's letters after this deed that a balance of the price was still resting; and in the ranking and sale of Sir James's estate this Earl claimed preference on these lands for that balance, and founded on Corse's adjudications as preferable. Answered, That by the law of Scotland the seller has no hypothec for the price, that the Earl was as much denuded as ever he was intended to be when the price was paid. Replied, Corse's adjudications are preferable, and not renounced, and the Earl is not bound to perform the contract 1713 to Sir James till he performs his part, and quoted December 5, 1746, Graham against Creditors of Trail, No. 7. supra. Duplied, The creditors have no use for the contract 1713, and the obligement 1714 is a sufficient renounciation of all rights in the Earl's or his trustee's person. The Lords found the Earl preferable for the balance yet resting of the price. (See Dict. No. 71. p. 2832. No. 33. p. 14129. No. 34. p. 14131.)