Scottish Court of Session Decisions

Subject_1 RANKING AND SALE.

Blackwood
v.
Earl of Sutherland

1748, July 1.
Case No. No. 14.

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A decreet of ranking and sale of the estate of Dudhope being quarrelled at Mr Blackwood's instance to the end that he might be restored to his due place in the ranking and be preferred in an annualrent of L.11,000 that formerly belonged to Sir George Hamilton affecting that estate, and to which he had right by disposition 1702 and infeftment thereon in 1706 in the person of Sir Andrew Fleming of Farm, from whom he had adjudged; whereas in the decreet the Earl of Sutherland and others are preferred to him on a disposition by Sir George in 1699, though no infeftment followed till 1709, so three years after his, because he had not then produced Farm's sasine, but which he has since discovered and now produces. The first ground of reduction was, that Janet Hepburn, in whose name these processes were carried on was dead several years before it was raised. Defences were, that in rankings and sales the pursuers are often but nominal, without any effectual interest, as is often the case of processes of multiplepoinding; and in this case the competition betwixt Mr Blackwood and these defenders depended four years, wherein he forced them to prove the tenor of their sasine 1709, which therefore ought not to be annulled because of a mistake in the name of the pursuer, whose interest was found entitled to draw nothing; 2dly, Even this objection is competent and omitted by Mr Blackwood; 3dly, The regulations 1695 art. 18. provide that nullities in decreets in foro shall operate no further than to redress the party's prejudice by the nullity. The Lords sustained the objection and found the decreet void and null, and would not confine it, as Mr Blackwood proposed, to restoring him against it but to subsist as to the rest. But 3d January 1749, we altered, and sustained the decreet, but allowed Mr Blackwood to be heard on his infeftment notwithstanding its being omitted in the former process.