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.

Richard Thomson
v.
Creditors of Mr David Armstrong

Date: 16 November 1786

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[Dictionary, 10,229.]

Braxfield. The cause turns upon this,—Whether the titles were properly made up by Mr Armstrong; and, in determining on this, we ought to consider what clauses are necessary to be inserted in a charter and infeftment, and what clauses are merely personal. Where clauses are meant to be put in, the disponee cannot leave them out to the hurt of the disponer: as, for instance, if there was a clause of redemption, he could not leave it out. But here lands were disponed, heritably and irredeemably, with an obligation to account, and then another deed was executed. The obligation to account was merely personal;—hence I think that Mr Armstrong might have sold for a price, and the purchaser would have been secured by his bona fides. The same is the case as to heritable creditors. The case is different as to adjudgers; they are not on the same footing with Mr Armstrong, selling for a price. So it was decided in the case Gib against Williamson, on a hearing in presence. I would not vary that judgment: other cases have been determined on the same principle.

Monboddo. An heritable bond is good, because it is the price of the estate: the adjudger seeks to mend his former security.

On the 16th November 1786, “The Lords found that the allegation of fraud is not relevant against the heritable creditor, but found that it is competent against adjudgers, and remitted to the Ordinary to proceed accordingly;” adhering, in substance, to the interlocutor of Lord Swinton.

Act. R. Dundas. Alt. Alex. Abercrombie.