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Scottish Court of Session Decisions >>
Neilson v Ross. [1681] Mor 1045 (8 February 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Mor0301045-134.html Cite as:
[1681] Mor 1045
Contractions or Alienations where Money instantly advanced.
Neilson v. Ross
Date: 8 February 1681 Case No. No 134.
Notwithstanding diligence, a bankrupt may sell his lands for a price instantly paid; such alienation is no preference of one creditor to another.
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Gilbert Anderson having apprised from James Farquharson in anno 1640, the lands of Kelless, whereunto John Wilson having right; pursues reduction of a voluntary disposition and infeftment of the same lands, granted by the said James Farquharson to Sutherland of Skelbo; whereupon he was infeft, and Mr John Ross as having right from him, upon these reasons; 1mo, That after legal diligence of a lawful creditor though it were but inchoate by denouncing of lands to be apprised; or using exhibition against the person inhibited, any voluntary disposition, by the debtor to prevent the effect of such diligence, are annulable thereby; as hath been oft-times decided, much more when an apprising was consummate. 2do, By the act of Parliament 1621, anent fraudulent alienations, and the last clause thereof, it is statute, That if a debtor, after, legal diligence, by apprising, horning, or inhibition, shall, by gratification, prefer any other creditor, and dispone to them, such dispositions shall be null.—It was answered for the defender, to the forst reason, That albeit when any lawful creditor is in cursu diligentiæ, no voluntary disposition by his debtor can exclude him; which cannot be applied to this case, where the appriser was silent and negligent by the space of 10 years without infeftment, or giving a charge, and without pursuing for mails and duties, and so could not be said to be in cursu diligentiæ. As to the second reason, the voluntary disposition here is no gratification or preference, but a fair bargain of sale for a price then paid bona fide, the buyer having been no creditor before, and therefore falls not within the act of Parliament, and no purchaser could secure himself against apprisings, which at that time were not upon record.
The Lords found both these defences relevant to exclude the reasons of reduction. (See Litigious.)
