Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION II.

Alienation after Diligence.
Subject_3 SECT. VIII.

Effect of Mora in the conduct of the Creditor Reducer.

Kinloch
v.
the Earls of Southesk and Northesk

Date: 25 February 1680
Case No. No 160.

Where there has been an improper degree of mora, in following out diligence, alienation in prejudice of it will be sustained.

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David Grahame of Fintry having disponed the lands of Glenprossin and Killiemuir, to Kinloch of Bandoch, with consent of his eldest son; but the father having died before Bandoch's infeftment, the son was entered and infeft, and did also infeft Bandoch in implement of his father's disposition; but there being a prior apprising at the instance of Walter Lyel against the son, to whom these lands were disponed by his contract of marriage, to which apprising the Earls of Northesk and Southesk have right, whereupon there were mutual reductions:—It was alleged for the said Earls, That their author having apprised from Fintry, the disposition granted to Bandoch thereafter was inter cenjunctos, Bandoch being Fintrie's sister-son, so that the narrative in the disposition will not instruct an onerous adequate cause; but the right is presumed to be without a cause onerous, in defraud of Lyel the anterior creditor.——The Lords found, That Bandoch behoved to instruct the cause onerous.—It was further alleged for the said Earls, That albeit the onerous cause were instructed, yet by the act of Parliament 1621 anent bankrupts, after lawful diligence by horning, apprising, &c. the debtor cannot by voluntary disposition, or other gratifications, prefer another creditor, not having done more timeous diligence.—It was answered, 1mo, That the clause alleged upon, relates only to disponing in favours of a creditor, in prejudice of the prior diligence of another creditor; but where the debtor dispones to a third party, who is no creditor, but buys bona fide for a competent price, and pays the same, the buyer can never be questioned, or otherwise commerce of lands behoved to cease; for there is no record by which a buyer may know the diligence of creditors, except what appears by the register of hornings, inhibitions, and sasines, and this right is before the late act of Parliament, allowing apprisings to be registrated. 2do, The privilege of the act of Parliament in favours of creditors doing diligence, can only be understood where they persist in their diligence, to the effect that while they are in cursu diligentiæ, the debtor cannot disappoint their diligence by voluntary dispositions; but if the creditor persist not, but prove negligent, it cannot be imagined that all inchoate diligences should be as valid as inhibitions; and that till forty years ran, none might buy or take security in the debtor's land; ita est, nothing followed upon this apprising by charge, infeftment, or otherwise, for same years before Bandoch's right, and therefore voluntary dispositions are preferable to apprisings, whereupon nothing follows within a year, as is observed by Spottiswood, p. 43, Hamilton contra M'Culloch, voce Bona et, Mala Fides, where the Lords found the voluntary disposition preferable to the apprising, whereupon no diligence followed for several years before the right. There was also a reason ex capite inhibitionis; against which it was alleged, That the inhibition was null, not being execute at the head burgh of the regality wherein the lands lay. It was answered, That the execution was during the usurpation, when regalities were suppressed.—It was replied, That it was offered to be proven, that inhibitions used to be even then executed at the head burgh of the regality.

The Lords sustained the inhibition, albeit some persons, for the more security, inhibited at the head burgh of the regality, during the time of the usurpation. See Inhibition.

Stair, v. 2. p. 762.