Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Neilson

Date: 28 January 1755

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[Kilk. February 8, 1755.]

In this case the Lords decided a very general point of law, and of considerable consequence: lliey found that if a sale of lands was fraudulent upon the part of the buyer, though the right was completed in his person by charter and seasine, before any challenge brought, yet his creditors adjudging the subject from him, and noways in the knowledge of the fraud, were liable to reduction ex capite doli, and that without distinction, whether the adjudgers had completed their right by infeftment or no ; for the Lords thought that an adjudger could only take the subject tantum et tale as it stood in the person of the debtor, that is, liable to be evicted upon his backbond or other personal deed, and also for his fraud, in the same manner as an arrestment gives the subject, just as it was in the debtor's person ; for which reason it is that an arrester is not considered as an ordinary assignee, but the oath of the debtor in the debt arrested proves against him as well as it would have done against his debtor.

This judgment the Lords gave unanimously ; and the President said it had been before so adjudged in a case which he mentioned ; dissentiente tantum Kaimes, who said he could not make the distinction betwixt a voluntary disponee and a legal disponee or adjudger; and he thought the case of an arrestment was not similar, because an arrestment did not give the property of the subject as an adjudication does. But there seems to be some difference in the nature of the thing betwixt a purchaser who lays down his money and buys upon the faith of the records, and a creditor, who, for a debt not contracted upon the faith of the lands, adjudges from the creditor what he can get. If a creditor in such a case will have the security of the records, he should take an heritable bond upon the lands; and that, it is believed, would make him as safe as a purchaser.