Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 INHIBITION.
Subject_3 Inhibition not competent to render effectual, against creditors, a deed by which a person obliges himself, in favour of others, not to sell or impignorate his lands, nor to contract debt by which they may be burdencd.

David Ross of Ankerville and Others
v.
William Ross Munro of Newmore and his Creditors

Date: 8 August 1787

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[Dict. 7010.]

Braxfield. An inhibition does not give a right; it only secures a right. Sir Thomas Hope thought otherwise, but no lawyer has adopted his opinion. In the case of the Heirs of Barholm and Dewar of Vogrie, an inhibition on an obligation to entail was found not valid against creditors. Hence I conclude that the deed 1765 is not effectual. Neither is the deed 1774 effectual; for, by that deed, Newmore had a reversionary right, which may be affected by his creditors. But, as to the deed 1777, there is no ground of challenge proved against it at the instance of Newmore; and the creditors who contracted after the date of that deed cannot object.

Eskgrove. Before the Act 1685, lawyers were very desirous of tying up estates; but they were at a loss to accomplish their purpose. The first difficulty that struck them was, How the interest of creditors could be provided for? This induced Sir Thomas Hope to propose an inhibition as a public notice. But I consider the Act 1685 as excluding every mode of effectual entails other than those sanctified by that act. The deed 1765 is not in terms of a legal entail. I also agree with Lord Braxfield as to the deed 1774, and also as to the third point respecting the deed 1777. As Newmore might have made a present of his estate, or given it to his heirs, he might do the same, by means of trustees, for the behoof of the heirs, and no posterior creditor has right to complain.

Monboddo. By the Act 1685 no man can put his estate out of commerce, and at the same time retain the fee. But the deed 1777 is one which the law cannot prevent; for Newmore gives up every right of fee and restricts himself to a liferent.

Justice-Clerk. I was alarmed at seeing it argued, that, under the form of a contract for an imaginary quid pro quo, an inhibition could prevent the burdening of an estate with debt. This is adverse to the Act 1685, and also to the decisions in the cases of Barholm and of Bryson.

On the 8th August 1787, “The Lords, in respect that, by the deed 1777, Munro of Newmore was habilely denuded, sustained the reasons of reduction of the debts contracted posterior to the date of that deed.”

Act. Adam Rolland, &c. Alt. R. Blair, &c. Reporter, Henderland.