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Scottish Court of Session Decisions >>
Smith v Smith. [1737] Mor 5534 (11 November 1737)
URL: http://www.bailii.org/scot/cases/ScotCS/1737/Mor1305534-093.html Cite as:
[1737] Mor 5534
Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XVI.
Price of Heritable Subjects.
Smith v. Smith
Date: 11 November 1737 Case No. No 93.
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A debtor oberatus having disponed his estate to certain trustees for the use and behoof of his creditors, with power to them to sell and dispose upon the same, and to divide the price among the creditor, the trustees accordingly entered upon the management with consent of the whole creditors; were infeft, and found a purchaser for the lands. After the purchaser was infeft, but before the price was distributed, one of the creditors dying, the question occurred betwixt the heir and executor, which of them had right to his debt, which was a personal bond bearing interest, It was doubted whether infeftment granted to trustees, though accepted of by the creditors, had the same operation as if granted to the creditors directly. But the Lords took it upon a ground less disputable: They found the price moveable, the same having been with the creditor's consent; after which there remained nothing but a personal obligation upon the purchaser to pay the price in the same manner as if the estate had been disponed directly to the creditors, and they had sold the same See Appendix.
