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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Humphry Bland Gardener v George Spalding and his Curators. [1766] Hailes 842 (30 November 1779)
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Cite as: [1766] Hailes 842
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[1766] Hailes 842
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ARRESTMENT.
Subject_3 Arrestment not a habile mode of affecting the reversion of an estate sold judicially.
Date: Humphry Bland Gardener
v.
George Spalding and his Curators
30 November 1779 Click here to view a pdf copy of this documet : PDF Copy
[Fac. Coll. VIII. 177; Dict. 730.]
Braxfield. In the case of a judicial sale, the creditors must be paid before the purchaser can have right to the lands. The price of the lands is an heritable subject, and the creditors must carry it by adjudication. The heir must carry the reversion by service and infeftment; he cannot carry it, like moveables, by confirmation.
Kaimes. The reversion of an estate, sold under the Act 1681, belongs to the heir after the creditors are paid; but the heir must make up titles to it, and so must creditors. There is an inconveniency in obliging the creditors to adjudge; but incommodum non solvit argumentum.
Monboddo. The price of an estate, sold under the Act 1681, does not BEcome a moveable subject.
Gardenston. An adjudication might be necessary, were there any competition of creditors; but here there is none. It is the curator of the heir who is pleading, plainly to the prejudice of the heir, and he forces the creditors to tear the estate to pieces by adjudication.
Justice-Clerk. I have some doubt how far the rule of law can apply to this case.
Kaimes. Here there is an apparent heir only. He could not get the subject without a real title; and how can the creditors get it from him by a forth-coming?
Covington. How came the apparent heir to get an aliment here, as he has not entered?
Braxfield. That is not the present question; but I see how he could get it. An apparent heir has right, although not entered to the rents of the estate.
On the 30th November 1779, “The Lords found that the reversion could not be attached by arrestment;” adhering, in substance, to Lord Westhall's interlocutor.
Act. G. Ferguson. Alt. W. Nairne.
The electronic version of the text was provided by the Scottish Council of Law Reporting