Effect of the Apparent Heir's interference, and extent of his Interest in the Estate.
Christian Sutherland v. Jean Sutherland
Date: 14 August 1786 Case No. No 38.
Inhibition used against an intermediate apparent heir, of no effect after the succesion is taken up by a subsequent heir serving to the predecessor last infeft.
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An apparent heir executed a deed in favour of Christian Sutherland, on which she used an inhibition against him. He afterward granted an obligation to Jean Sutherland.
On the death of the apparent heir, after being three years in possession, the person succeeding made up titles to the remoter predecessor. In a competition which followed, between the inhibiter and the other grantee, the former claimed a preference in virtue of that diligence; to which, as being directed against an heir who died in the state of apparency, the latter objected, and
Pleaded; Though an apparent heir has a title to the annual produce of the estate during his life, yet dying before service, he cannot transmit any right in the estate itself, which still remains in hæreditate jacente of the ancestor. All diligence, therefore, intended after his death to affect such estate, as having been his property, must be inept and void.
The statute of 1695, it is true, has made the person serving heir to a predecessor last infeft liable for the debts and deeds of interjected apparent heirs three years in possession. This, however, is no more than a personal obligation, through which alone, or as being thus creditors to the heir served, those of the intermediate apparent heirs have access to attach the estate; so that in this respect the statute has made no alteration of the common law.
Now, though inhibition may affect subjects to be afterwards acquired as well as those antecedently belonging to the party inhibited, the diligence in question must be unavailing, as having been used against a person who was at no time proprietor. No diligence can have effect in this case, but that which is directed against the heir whose right is completed by service.
Answered; The object of inhibition is, to preclude debtors from disappointing the claims of their creditors, by posterior deeds tending to alienate or burden any real estate, which may fall under the right of the debtors. It has been admitted to be immaterial, whether such estate had been previsously, or not till afterwards, acquired. And it is plainly of as little importance, by what particular means it has come under the right of the debtor; whether immediately by his making up titles to it himself, or by the operation of law, in consequence of titles established in the person of a supervening heir. In both cases alike, it is the right of the debtor that is ultimately exercised.
The inhibition in question was calculated to debar all effect of the second deed, in carrying off, to the prejudice of the first, property attachable in the right of the granter; the very thing which is here attempted by the competing party. The inhibiter's claim of preference is therefore to be sustained.
The Lord Ordinary found the inhibition to be ineffectual, and repelled the claim of preference made on that ground.
The Court adhered to the interlocutor of the Lord Ordinary.
Lord Ordinary, Elliock.For the Inhibiter, Elphinston.Alt. R. Craigie.Clerk, Home.
Fol. Dic. v. 3. p. 260. Fac. Col. No 292. p. 449.
