Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. VIII.

Effect of Irritancies, &c. not ingrossed in the Infeftment.

Sir Hugh Campbell of Calder
v.
The Creditors of Hay of Park

Date: 7 July 1706
Case No. No 110.

An heritable bond of relief provided, that the infeftment to be expeded on it should not be redeemable till the cautioner should be reimbursed of all charges and damages in general. He was found preferable only for sums, annualrents, and expenses paid by him to the creditors of the common debtor, not for the expenses of his infeftment, or of supporting his right in the competition.

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In the ranking of the Creditors of Park Hay, Sir Hugh Campbell of Calder founded upon an heritable bond of relief for several cautionaries he stood engaged in for Park, whereupon he had taken the first infeftment; and craved preference, not only for the principal sums, annualrents, and expenses paid by him to the common debtor's creditors, and these annualrents and debursements stated as a principal sum bearing annualrent from the time of payment; but also sought to be preferred for the expenses of expeding his infeftment, and making it effectual against the other competing creditors; because, his bond of relief doth expressly provide that his infeftment shall not be redeemable till he be reimbursed, not only of all charges and damages in general, but also of the expense of his infeftment; and his charter under the Great Seal repeats these obligements, and both it and his sasine expressly relate to the reversion in the way and manner as the same is contained in the bond of relief registered and made publick.

Answered for the other Creditors, However the expense of Sir Hugh Campbell's infeftment might be the foundation of an action against Park Hay, it is inconceivable upon what ground it can be real against the estate, to the exclusion of other creditors; seeing there is no such provision in the infeftment, which is only granted for relief of debts particularly therein enumerated. Nor doth it alter the case, that the infeftment relates to the charter; seeing singular successors are only obliged to notice what is expressly and fully contained in the sasine; and the words of the charter, To be relieved of all cost, skaith, or damage, can only relate to the debts he stood engaged for. 2do, Whatever might be pleaded as to the expense of expeding his infeftment, it is absurd to pretend that the debursements in maintaining his right against the competing creditors ought to be sustained; seeing in competitions every creditor must bear his own burden of expenses for his own security.

The Lords sustained preference upon the infeftment of relief for the principal sums, annualrents, and expenses paid by Sir Hugh Campbell to Park's Cretors, and allowed the same to be stated as a principal sum at the time of payment; but refused to sustain his claim of expenses for expeding his infeftment and making it effectual against the other competing creditors.

Fol. Dic. v. 2. p. 70. Forbes, p. 124.