Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Alexander Beattie
v.
The Laird of Morphie

Date: 27 November 1673

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The deceased Laird of Dunn, being debtor to Robert Beattie, in Montrose, by bond, in the sum of two thousand and odd hundred pounds, which was assigned to the Earl of Ethie upon a back-bond; Ethie did transact with the Laird of Morphie, who acquired a right to the Laird of Dunn's estate, and obtained a bond from him, bearing, that, being satisfied of his own debts and cautionaries, he should satisfy the Earl of Ethie of all sums due to himself, or as assignee to any bonds granted by the Laird of Dunn: and thereafter did grant a new bond to the said Earl, bearing, per expressum, his assignation to Beattie's debt: and, in corroboration of the first bond, and but any derogation thereto, of new, became bound and obliged to pay the said debt, and all others due to Ethie, out of the first end of the price of the lands of Dunn, he being first satisfied of his own debts and cautionaries. After which the Earl of Ethie, having made a retrocession to Alexander Beattie, as executor to his father, and also assigned him to both the said bonds granted by Morphie, he did thereupon pursue him, as representing his goodsire, granter thereof, for payment.

It was alleged for the defender, That both the said bonds were granted intuitu of a right, made to Morphie, of Dunn's estate, who was the only debtor; and, that the posterior bond, bearing, in the obligatory part, that he was only obliged to pay the said debt in case the price of the said lands disponed would satisfy Morphie and the Earl of Ethie's own debts, he was not obliged to make payment but in the case foresaid: which could never be made appear, the estate not amounting to the payment of all other debts, which were first to be paid before this debt.

It was replied, That, by the first bond granted to the Earl of Ethie, albeit, in the narrative, Morphie became obliged, intuitu of the Laird of Dunn's estate disponed to him; yet, in the obligatory part, he becomes simply obliged to pay all sums to which Ethie was assigned, which did comprehend this debt; which is clear by the bond of corroboration, wherein it is expressly set down: and Morphie, of new, becomes obliged in corroboration of the first bond, and but any derogation thereto, to pay the said debt, which cannot be taken away by any declaration of the manner of payment out of the price of the lands.

The Lords did find, That the posterior bond of corroboration, notwithstanding that it did bear noways to derogate from the first bond, yet, in the obligatory part, being special and positive as to the way of payment out of the price of the lands, after the payment of Morphie's own debt, it did in effect derogate from the absolute obligement in the first bond; and qualified the manner of payment, that unless the estate of Dunn being sold, all private debts could be satisfied, and the debt now in question, Morphie was not liable; upon this reason, that posteriora derogant prioribus.

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