A creditor, during the dependence of a judicial sale, and after obtaining a dividend out of part of the lands, on which he was preferably secured, adjudged the remaining lands, as a title to the purchaser, for the whole debt, without deduction of the dividend already received; and claimed to be ranked accordingly. But he was found entitled to rank only for the balance due to him at the date of the adjudication; and he was refused the expense of it, because it was posterior to the act of sederunt 11th July 1794, by § 15. of which such adjudications are rendered unnecessary.
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The lands of Kerse and Clannochyett, belonging to Mr. Weir, were brought to judicial sale.
Several heritable securities had been granted by him on Kerse, and, among others, an heritable bond to Edie and Laird; but none over Clannochyett.
In 1793, a decree of ranking was pronounced. In 1794, Edie and Laird received a large dividend out of the price of Kerse, and in 1795, they adjudged, as a title to the purchaser, the lands of Clannochyett, for their whole debt, without deduction of the dividend which they had received; but in order to avoid the objection of pluris petitio, they previously stated in a minute, that their object was merely to draw full payment of the balance due to them.
The other creditors adjudged within year and day.
The price was insufficient to pay the whole creditors.
Edie and Laird claimed to be ranked for the whole sum in their adjudication, and to be repaid the expense of it. But the Lord Ordinary found, “That they were only entitled to be ranked on the funds in medio for the balance due them, after deduction of all partial payments that they had received to account of their debts; and further, found they were not entitled to the expense of the adjudication at their instance.
In a reclaiming petition, they
Pleaded: When the process of ranking came into Court, the petitioners might have adjudged Clannochyett for their whole debt; and, notwithstanding a partial payment afterwards received by them out of other funds, they would have been entitled to rank for the whole sum contained in their diligence; 16th February 1734, Earls of Loudon and Glasgow against Lord Ross, No. 23. p. 14114. 2d August 1781, Douglas, Heron, and Company, against the Bank of England, No. 35. p. 14131. 8th February 1792 Maxwell's Creditors against Heron's Trustees, No. 63. p. 2136. and as the dividend from Kerse was not accepted extra-judicially, but paid by the act of Court, there is no reason why the petitioners should be in a worse situation as to their security for the balance than before the dividend was received.
The adjudication was necessary for the security of the purchaser; it was the first effectual one, and the other creditors adjudging within the year and day, must, in terms of the act 1661, pay the expense of it.
Observed on the Bench: The debt was in part extinguished by the dividend received from Kerse, and the claimants ought at most to have adjudged only for the balance. But there was no occasion for adjudging at all, as the act of sederunt, 11th July 1794, § 15. declares the decree of sale to be a sufficient title to the purchaser.
The petition was refused without answers.
Lord Ordinary, Craig.For the Petitioners, J. W. Murray.Clerk, Home.
Fac. Coll. (Appendix), No. 4. p. 6.
