Scottish Court of Session Decisions

Subject_1 INHIBITION.
Subject_2 SECT. IV.

Inhibition has Effect only against Voluntary Rights.

Osburn
v.
Dunbar

Date: 3 July 1700
Case No. No 104.

A minor, in a disposition, bound himself to renew it, when major. The new disposition, which did not refer particularly to the first, was challenged ex capite inhibitionis. It was supported.

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Halcraig reported the reduction ex capite inhibitionis, pursued by John Osburn writer in Edinburgh, against Alexander Dunbar taylor in the Canongate. Dunbar of Thurston dispones some tenements to the said Alexander Dunbar, and obliges himself to reiterate and renew the same; and at this time he wants some months of his majority. Being major, he gives a bond for L. 763 to John Osburn, who thereupon serves an inhibition; after which, he grants to Alexander Dunbar a new disposition of the same tenements, and some others, for security of his former debt, but without any special relation to the prior disposition, or the obligement therein contained to renew it, but only on this narrative, that it was just that Alexander should be fully secured for his money; and on this second disposition he is infeft. Osburn craves the second disposition may be reduced, as posterior to his inhibition. Answered, Though it be not expressly relative and for implement of the first, yet it had sufficient relation by the presumption and construction of law; seeing Thurston was specifically obliged to reiterate and renew the same; which he has effectually done, by granting this second right; which mentioning no other cause, and bearing it to be reasonable that Alexander should be secured, can be ascribed to no other thing but to fulfil the prior obligement; and so is no voluntary deed, but must be drawn back to the date of the first, and supported by it; even as dispositions on death-bed, or by husbands in favours of their wives, or by bankrupts to their creditors, are not reducible, if there was a previous special obligement for granting them, though the last do not specifically relate thereto; but the Lords have always allowed them to be supported and adminiculated by their antecedent onerous cause; 23d November 1664, Haliburton contra Porteous, No 348. p. 6136.; 27th June 1677, Short contra Murrays, No 341. p. 6124. The Lords repelled the reason of reduction upon the inhibition, and found the second depended on the first, and was in implement thereof, as to the tenement contained in the first, but no further, seeing quoad excessum, it was a new voluntary right, without an antecedent cause. As to the second reason, that the first was done in minority, they ordained it to be farther heard, whether a co-creditor can propone upon and claim the benefit of his debtor's minority; in which case the first disposition being found null, the second had nothing to support it, and so becomes an adjective without a subjunctive. I find the Lords, on the 4th December 1677, in the case of Oliphant and Hamilton of Wishaw, voce Minor, found a co-creditor might found on the debtor's minority to stop the legal of an apprising from running against him.

Fol. Dic. v. 1. p. 475. Fountainhall, v. 2. p. 100.