Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. VIII.

Of Second Gratuitous Alienations of the same Subject.

Lord Frazer
v.
Phillorth

Date: 23 July 1662
Case No. No 62.

A first disposition with last infeftment, for onerous causes, preferred to a second disposition of the same subject, gratuitous, with first infeftment.

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In the declarator of property of the barony of Cairnbulg, at the instance of the Lord Frazer, against the Laird of Phillorth*, it was alleged for the defender absolvitor, because the pursuer's father and grandfather's infeftment is upon the resignation of Frazer of Doors, ita est, Frazer of Doors had no real right in his person, never having been seased, at least there is certification granted against Doors's sasine, in the improbation at the instance of the defender,

* Stair, v. 1. p. 128. voce Jus Terth.

against the pursuer and his father; so that Doors having no real right, his disposition, instrument of resignation, and charter granted by the king, flowing upon the resignation of the Laird of Phillorth and the Lord Lovit, who had right to Pitsligo's apprising, of the haill estate of Phillorth, can give no right to declare the property, especially against the defenders, who hath real right by infeftment, flowing from Phillorth his goodsire by resignation, and flowing from the Lord Lovit, which albeit posterior, yet having the first infeftment, is the first and only right. The pursuer answered, The defence ought to be repelled, because any right the defender hath is from his own grandfather, to whom he was alioqui successurus; and thereby the defender is successor titulo lucrativo to his grandfather, the common author, after the disposition granted to Doors, and as umquhil Phillorth, Door's author, personali objectione would be excluded from opposing Door's right of property; which right he had disponed to Doors, and was obliged to warrant; no more can the defender, (who by this same right he defends, being successor lucrative to his grandfather), be heard to exclude the pursuer, who is successor to Doors. 2dly, Albeit there be no sasine, yet umquhil Phillorth and Lovit were fully denuded in favours of Doors, by the resignation made in the king's hands, and charter conform, after which any right granted to them by this defender, is a non habente potestatem. 3dly, Any right the defender hath flowing from the Lord Lovit cannot defend him, because it was but an apprising against Phillorth the common author; and it is offered to be proven that the apprising was satisfied within the legal, in so far as the lands of Innernorth were disponed by Phillorth and Lovit jointly, to Fraze of Doors for 20,000 merks, and the lands of Innerallothy were disponed by them to Lovit's own sons irredeemable, the price of which lands being 54,000 merks, was the sum appointed for satisfaction of the apprising betwixt the saids parties, and so as to the lands of Cairnbulg, and remnant lands apprised, the apprising is extinct. The defender answered to the first, That he is not successor titulo lucrativo to his goodsire, because the time of the disposition by his goodsire to him, and also the time of his goodsire's death, his father was alive, and served heir to his goodsire. 2dly, There was no right in his goodsire when he disponed; but all the right was in the Lord Lovit by Pitsligo's apprising; neither was Lovit denuded by the resignation or charter without sasine, so but that the second resignation with the first infeftment is preferable. 3dly, Satisfaction of the apprising, as it is alleged, is not relevant, unless it be by intromission with the mails and duties of the lands apprised, conform to the act of Parliament 1621, but no other payment, or satisfaction by the debtor, is sufficient to take away an infeftment, contra singularem successurum.

The Lords repelled the defence, founded upon Lovit's apprising, in respect of the reply of satisfaction thereof; and found no necessity to allege that the person having right to the apprising was otherways denuded, than by acknowledgement of payment or satisfaction, and that there needed no formal grant of redemption or renunciation, registrate conform to the act of Parliament anent the registration of sasines, reversions, &c. which the Lords found only to extend to wadsets, properly so called, and not to apprisings; neither yet to an infeftment for relief, whereunto the rents were not to be only for the annualrent of the sum, but to satisfy the principal; and, therefore, seeing the Lords found that the only right was in the defender's grandfather, and that he disponed to the defender; that he could be in no better case than his grandfather, as to the disposition granted by his grandfather without a cause onerous, being after the disposition of the same lands, by that same grandfather to the pursuer's author; but found it not necessary to determine the case of lucrative successor, as it was here stated to make the successor liable to his predecessor's debts. See Personal and Real. See Registration.

Fol. Dic. v. 1. p. 70. Stair, v. 1. p. 133.