Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PERSONAL AND REAL.

Ferguson of Auchinsoul
v.
Hugh Mitchell

Date: 13 February 1781

Click here to view a pdf copy of this documet : PDF Copy

[Fac. Coll. VIII. 60; Dict. 10,296.]

Monboddo. Here the price was honestly paid; possession was held for seven years; and the purchaser was in the course of completing his titles: a personal creditor steps in, adjudges, is infeft, and now seeks to carry off the subject. This is unjust. The original seller could not have conveyed to that creditor, without a crime. Can the law do that for a man which he could not do himself? If both rights had remained personal, the minute of sale would have been preferable, as being prior in date; and therefore the only ground of preference claimable is on account of the infeftment. What can be the effect of that infeftment? The disponee contracted on the faith of the records, but the adjudger did not. When men lend money on the faith of the records, it is not on personal security that they lend: when they lend money on the faith of the records, they take heritable security. The infeftment here is no more than a completing of the diligence, which, before infeftment, was only inchoated. I do not say that the infeftment has no effects. No: it makes the person infeft the first effectual adjudger, and it prefers him to any posterior real right. If transferred to a third party, it would be preferable to the minute of sale; because there the assignee acquires on the faith of the records. This would be mere speculation, were it not for the opinion of lawyers, and the series of decisions to the same purpose as my argument. There is a series of decisions, from 1670, Kennedy, to 1775, Neilson. In the last case there was probably an infeftment; and there was no minute of sale, but merely a ground of eviction. The case of Roseberry is also to the same purpose, and also the case of Gib, in 1763. I see nothing on the other side except the case of Bell of Blaclcethouse, in 1787. That case went far, but we must not go any farther.

Braxfield. If the doctrine now advanced were to be held as law, strange consequences would ensue and exceedingly hurtful. Innumerable frauds would take place. For example, a man borrows money on an heritable bond: no infeftment follows. Other creditors go on trusting him; they at last adjudge, and take infeftment. According to the doctrine now pleaded, this would be good for nothing: the heritable bond would exclude them all: the first creditor would carry off the kernel, and leave the shell to the adjudgers. Again, suppose that, in a marriage-contract, the estate is conveyed to trustees, for behoof of the heirs of the marriage,—the trustees, instead of taking infefment, suffer the father to continue in possession: the father contracts debts to the value of the eslate,—his creditors will be cut out by the trustees. A second disponee, with first infeftment, is preferred to the first disponee. This is admitted: but it is said that the case is different as to adjudications, which take the estate, tantum et tale, as it was in the author. It is answered,—The principle is, that feudal rights are not to be affected by -personal. As to bona fides, although mala fides may cut down a right, bona fides cannot establish a right. The act 1617 says nothing to the contrary. Reversion qualifies an infeftment, however latent it may be. To prevent that inconvenience, the clause was thrown in in favour of purchasers. Dispositions are not mentioned in the statute, for they do not affect the feudal right. The judgment in the case of Blackethouse was solemnly determined. The distinction now sought to be made was not made there, because the lawyers thought it not tenable. The difficulty there was, that these were only personal rights. The principle of the decision is, that a feudal right is not affected by a personal deed. It is much insisted on that the debtor himself could not have granted a disposition to Mitchell, and therefore that the law could not grant such disposition by adjudging. Answer,-A bankrupt cannot grant a disposition to any particular creditor, but any particular creditor may adjudge. There is no occasion for impugning former decisions: all of them apply to the case of conjunct persons adjudging. That is a fraudulent right; and he who adjudges must take the estate cum sua labe: that also is the case in Dirleton.

Gardenston.I know no safety to the feudal law, unless you prefer infeftments; for otherwise an imperfect right would be better than a complete one. There is great danger in departing from this feudal principle, but none in adhering to it. The disponee is safe, unless he is supinely negligent; for an adjudication cannot be taken on a sudden, and without the knowledge of many.

Elliock.In the cases of Neilson and Gib the argument struck at the radical right.

President.If a different decision were given, it might not shake the faith of the records, but it would shake the practice of the nation. The case of Blackethouse was held by all the great lawyers of that generation to have been well judged. There is a case in Stair, Livingstone against Forrester, 1674, decided in the same way; and there is no decision to the contrary.

On the 13th February 1781, “The Lords found that the adjudication, with infeftment, is preferable to the prior minute of sale;” altering Lord Mon-boddo's interlocutor.

For the adjudger,—E.M'Cormick, T.M'Laurin.

Act. D. Rae, G. Ferguson.

Diss. Monboddo.