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Scottish Court of Session Decisions >>
Patrick Gardiner v The Lady Torwoodhead and William Baillie, her Son. [1681] 3 Brn 400 (3 June 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Brn030400-0561.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Patrick Gardiner v. The Lady Torwoodhead and William Baillie, her Son
Date: 3 June 1681
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The Lords, having heard Newton report the debate, found the inhibition against James Lord Forrester could take no effect against the infeftment of wadset, though posterior, granted by him to William Baillie of Torwoodhead, his brother, if the granter thereof was obliged to give an infeftment either of wadset or of annualrent, (though this last seems not to be a specific implement of the auterior obligement,) and that either personally himself, or as representing the person obliged; and find that James Lord Forrester, the person inhibited, being bound, in William Baillie of Torwoodhead's contract of marriage, as consenter, to infeft the said William, the following disposition, albeit by way of wadset, is no voluntary deed, but an implement of the obligement in the said contract of marriage, wherein the said Forrester is a consenter.
This was complained upon by some; because, by the common principles of law, and current of decisions, infeftments are only drawn back to anterior obligements, in prejudice of intervening inhibitions, where the anterior obligement is express and specific for granting of that individual right quarrelled, bearing a precept of seasine; else any prior ground of debt were sufficient to secure voluntary infeftments against intermediate inhibitions, which would certainly evacuate all such legal diligences; and renders creditors who inhibited most unsecure, who are not obliged to knowr prior latent personal obligements. But here there is no necessary antecedent specific obligement to grant a wadset, and so no connexion betwixt the two, as law requires.
Yet this was repelled. See 30th November 1681, Carnegie.
