A purchaser became bound to pay to a creditor on the estate purchased, a certain sum, upon his granting a conveyance of his debts. One of these debts was an adjudication, led by a third party, which had been paid by this creditor, who, in place of taking a conveyance, had granted a discharge. The adjudication, grounds thereof, and discharge having been lost, the creditor was ordained to raise an improbation of the adjudication, in name of the purchaser, to disburden the estate thereof.
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Macdonell of Shian, in the year 1739, was debtor in a bill to the deceased Fraser of Belnain.
In the year 1740, Belnain adjudged the lands of Shian for that sum, and charged the superior; but no infeftment followed.
Macdonell of Glengary paid the debt for Shian; but, instead of a conveyance being given to him to the debt and adjudication, a discharge was given by Belnain to Shian; and Shian granted an heritable bond to Glengary, in which, among others, this sum was comprehended.
In the year 1751, Shian sold his estate to Macpherson of Killichuntly; at the same time, by contract of agreement, Killichuntly bound himself to pay to Glengary a certain sum, upon Glengary his granting to Killichuntly a sufficient conveyance of the said debts.
Glengary pursued for the sum; Killichuntly refused to pay till Shian's bill to the deceased Belnain, and the adjudication, were conveyed to him, in terms of his obligation, which did not bind him till he had a conveyance of the debts.
The bill, and discharge, and adjudication, had all been lost; and Belnain's son, not entering heir to his father, refused to grant a conveyance of the adjudication, lest he should involve himself in a passive title; but Glengary offered caution to Killichuntly, that the bill or adjudication should not affect the estate: Killichuntly answered, That caution would not protect the estate against an expired legal.
The precise meaning of parties, as to the necessity of the conveyance in question, was not clear from the terms of the agreement; neither was a parole proof offered, with precision to fix it.
Observed on the Bench, That Killichuntly was in no danger from the expired legal, as no infeftment had followed on the adjudication; his danger, too, was the less, especially after so long delay.
But it being likewise observed, That the charge against the superior might be considered as equal to an inhibition, and thereby render the adjudication effectual even against a purchaser; the Lords took a middle course, and
“Ordained Glengary to raise an improbation, in name of Killichuntly, against the adjudication in question; and, in the mean time, ordained Killichuntly to pay the annualrents of the debt to the pursuer.”
For Glengary, Lockhart, J. Dalrymple.For Killichuntly, Macdowal, Hamilton Gordon.Clerk, Forbes.
Fac. Coll. No 110. p. 161.
