Scottish Court of Session Decisions

Subject_1 CAUTIONER.
Subject_2 SECT. VII.

Relief of Cautioners.

Mr John Inglis of Nether Crammond, Doctor Henderson, and Others,
v.
The Creditors of Eastbarns, and David Oswald

Date: 13 December 1676
Case No. No 50.

An infeftment in relief, in the event of distress for cautionary obligations, was received as a competent right in competition with other real rights.

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In a double poinding raised by the tenants of Eastbarns against the foresaid parties, that it might be found who had best right, it was alleged for Mr John Inglis, that he ought to be preferred, because he stood infeft by Mr Patrick Inglis in the lands of Eastbarns, before any comprising led against him at the instance of any creditor who was now in competition. It was answered and alleged for the creditors comprizers, that any prior infeftment granted to the said Mr John was only base and never confirmed, whereas the comprizers were infeft and confirmed by the said Mr John himself as Bailie for the superior; likeas the said Mr John's infeftment was only for relief in case of distress for cautionry, before the comprizer's public infeftment, he can never crave preference. It was further alleged for the comprizers, that they ought to be preferred before all the comprizers who had comprized the saids lands from Mr Patrick Inglis, as being infeft by his father Mr Cornelius; because Mr Patrick's right and disposition of the lands were affected with their debts, in so far as by his disposition he became obliged to pay all his father's debts, conform to a list, wherein their names were particularly set down, and therefore the creditors of the son could not comprize, but cum onere of all debts due by the father, none of their names being insert in the list. It was answered for David Oswald, and the rest of the comprizers, that Mr Patrick Inglis having the full right of the lands settled in his person, and undertaking his father's debts, conform to a list, for which he was only personally liable, there being no inhibition served against him, it was lawful for any person to acquire a right from him to the lands, or to his own creditors to acquire a right from him by comprizing; and they having led comprizings within year and day of the comprizings led by the father's creditors, they ought to come in pari passu.—The Lords, as to the first debate, preferred Mr John Inglis of Nether Crammond, upon that ground, that not only he had a real right to the estate, but likewise that it was clad with possession, in so far as he instructed that Mr Cornelius had made payment of the rents to the creditors, and had obtained discharges to the said Mr John as having paid the same, before any comprizing led against him, and so albeit his infeftment was base, it was clad with possession before any of their rights. As to the second point, anent the preference betwixt the comprizers against the father and against the son, they did consider the right and disposition made to the son, and finding that neither in the dispositive part, procuratory of resignation, nor precept of sasine, it was really affected with these debts; so that in the narrative it did only bear, that he had become personally liable to pay these creditors whereupon no inhibition was served, they found that all the comprizings being within year and day, they ought to come in pari passu, without any regard who was within the list or out of the list. See Competition.

Gosford, MS. No 917. 918. p. 594.