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Scottish Court of Session Decisions >>
Menzies of Raw v - [1675] Mor 7033 (21 July 1675)
URL: http://www.bailii.org/scot/cases/ScotCS/1675/Mor1707033-099.html Cite as:
[1675] Mor 7033
Inhibition has Effect only against Voluntary Rights.
Menzies of Raw v. -
Date: 21 July 1675 Case No. No 99.
An obligation to dispone lands in general, without mentioning a patricular subject, found sufficient to support a posterior disposition of particular lands against a reduction ex capite inhibitionis.
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In a reduction of a disposition of certain lands at Menzies' instance, ex capite inhibitionis, it was alleged, for the defender, That albeit his infeftment was after the inhibition, yet it depended upon a prior bond, whereby the common debtor was obliged in general to dispone lands for satisfaction of the defender's true debt. It was replied, That the defence ought to be repelled, because the common debtor being infeft the time of the inhibition, could not dispone these lands in prejudice thereof. The Lords did sustain, and found it sufficient that the common debtor, before inhibition, by it minute of contract was obliged to dispone lands in general for satisfaction of his just debt; and that any intervening inhibition could not hinder particular lands disponed to take effect, nor the disposition to be drawn back to the date of the first bond, as the cause thereof; which being prior to the inhibition, nothing following in consequence could be prejudged thereby; yet nevertheless the case of legal diligence ought to be well considered; for there may be great danger in suffering the benefit of inhibitions and comprising against a debtor infeft to be of no force, if upon pretence of prior latent bonds, whereupon nothing followed, a creditor who was in bona fide to contract in contemplation of a real estate in the person of his debtor, more worth than any sums of money lent him, and doing real diligence by inhibition and comprising, which incapacitates the common debtor to make any voluntary right; notwithstanding thereof, upon pretence of a personal bond, he shall be judged to have as full power to infeft when he pleases, as if he were not inhibited; and albeit the case was only as to the effect of an inhibition, yet it seems in reason that no more can be said for a comprising, they being both founded upon one principle of law, viz. to incapacitate a common debtor, by any voluntary rights, to prejudge lawful diligence.
Fol. Dic. v. 1. p. 474. Gosford, MS. No 787. p. 494.
