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Scottish Court of Session Decisions >>
Kae v Stewart. [1664] Mor 6952 (00 June 1664)
URL: http://www.bailii.org/scot/cases/ScotCS/1664/Mor1706952-021.html Cite as:
[1664] Mor 6952
A pursuer of an action raised inhibition on the dependence. The parties afterwards entered into a submission, and after decree-arbitral was pronounced, a new inhibition was raised. Found that the former inhibition was thereby passed from.
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James Kae being obliged to pay to William Kae, his brother, 5100 merks, by bond 1622, and William having raised a process of transferring against James Kae, son to his brother James, he serves inhibition upon the dependence in anno 1641, and in anno 1643, obtains decreet of transferring. Thereafter, in anno 1650, there being a submission betwixt the parties, decreet-arbitral is pronounced, by which the said James is decerned to pay to the said William the sum of 2000 merks, in full satisfaction and complete payment of the said 5100 merks, and hail annualrents thereof, and William is decerned to discharge the same, with the bond and all that has followed thereupon; upon which decreet-arbitral William serves inhibition also, and upon both first and second inhibitions he intents reduction of certain bonds and deeds done by the father James, not only before but after the decreet-arbitral; against which it was alleged for the defenders, That they ought to be assoilzied, in so far as concerns deeds done before the decreet-arbitral, because the first bond and inhibition is innovated by the submission and decreet-arbitral, by which 2000 merks is decerned to be paid in satisfaction and complete payment thereof, and William ordained to discharge same. It was answered, That the sum not being paid, and the discharge not being granted, his prior right should stand till he be satisfied by the decreet-arbitral. Replied, The prior bond and inhibition is satisfied by the decreet-arbitral, which is made use of and homologated by William, by having raised a new inhibition thereupon, which can only furnish action of reduction of deeds made after the same.
Which accordingly the Lords found, after serious consideration of the decreet-arbitral, and the whole debate thereupon.
