Scottish Court of Session Decisions

Subject_1 INHIBITION.
Subject_2 SECT. I.

Nature, Stile, and Effect of an Inhibition.

Mill
v.
Nicolson's Creditors

Date: 9 December 1697
Case No. No 35.

Effect, in a ranking of adjudications, of an inhibition found ineffectual as to certain lands, but good as to others.

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Mersington reported the competition between Alexander Mill of Carridden, and the other co-creditors upon Sir William Nicolson's estate of Cockburnspath. Carridden had both adjudged and inhibited; but his adjudication, was found null, because he had charged Sir William's son only to enter heir to his father, who was never infeft in the barony of Cockburn's-path; whereas he should have charged him to have entered heir to his uncle Sir John, who died last vest and seized therein. Then he insisted on his inhibition and it was found null, in so far as it extended to the barony of Leswade, because not executed at the head burgh of the regality, within which these lands lie; but sustained his inhibition quoad Cockburn's-path, as being legally executed there. So that he reduced the grounds of several adjudgers' debts as contracted posterior thereto; which adjudgers being within year and day of the first, came in pari passu therewith: And now they being cut off, the question arose, to whom their shares of the dividend, either of the rents of the lands, or the price devolved? Carridden alleged, They being laid aside by his diligence, the same opened to him, seeing he could now lead a new adjudication, and thereby have right to their share which was become nullius et in hæreditate jacente. The prior adjudgers, whose debts were contracted before his inhibition, contended these shares accresced to them, seeing their debts more than absorbed the value of the lands; and esto these posterior creditors had never adjudged, Carridden as inhibiter could have laid no claim to these lands by virtue of his diligence, and so it comes to the case as if these debts had never been contracted, and so the inhibiter can have no benefit thereby; an inhibition being only a prohibitory diligence, and giving no positive right: And though he adjudge now, yet that will not bring him within year and day of these prior adjudgers, and so would signify nothing; and the contracting of the posterior debts did not wrong or prejudge the inhibiter, because the debts anterior to him are far above the value of the land, so he would have got nothing however; and the natural effects of inhibitions are to reduce all posterior deeds, which, by their concourse within year and day, restricting the share of the first adjudgers, and they being removed by the inhibition, the fetters of the first adjudgers restriction fall off, and so they return to their full and first extent, as if these posterior debts had never been contracted.—The Lords found their share accresced to the anterior adjudgers, and could not belong to the inhibiter, unless there were a superplus more than paid the first adjudgers whose debts were contracted before the inhibition. Several of the Lords were unclear in this nice point; but it will be the interest of these posterior adjudgers to agree with Caridden, the inhibiter, that he may withdraw his reduction of their rights, by which they may still affect a proportion of the price.

Some urged, seeing the inhibiter could not draw their shares, and that these posterior adjudgers had it by concourse and communication with the first adjudgers, therefore, that the inhibition should not reach them, as being a part of the first adjudication, and the inhibiter not being bettered by reducing them. But if they intromit, may not the inhibiter pursue them for repetition, or will they be construed, that bona fide suum receperunt, so condictione non tenentur? Or will this inhibition interrupt their bona fides? It may be doubted if jus accrescendi takes place in our law, inter re et verbis conjunctos, as by our statute posterior adjudgers, if within year and day, are conjoined, and make a part of the first effectual adjudication.

Fountainhall, v. 1. p. 800.