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Scottish Court of Session Decisions >>
Sellers v Cleughton. [1750] Mor 6983 (16 January 1750)
URL: http://www.bailii.org/scot/cases/ScotCS/1750/Mor1706983-052.html Cite as:
[1750] Mor 6983
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It was here found, that an inhibition did not only secure the principal sum and interest in the bond, which was the ground of it, but that it also extended so as to carry by the subsequent adjudication and accumulations, the irredeemable right to the lands by an expired legal, in prejudice of an intervening absolute right of property, granted by the person inhibited, between the date of the inhibition and the adjudication.
Fol. Dic. v. 3. p. 322. Kilkerran, (Inhibition.) No 11. p. 290.*** D. Falconer reports, this case:
Agnes, sister of Robert Davidson, used an inhibition against him, subsequent to which he conveyed his heritage for onerous causes, of which she obtained reduction, and adjudged upon her ground of debt; and then disponed her debt and diligence, which came by progress into the person of William Sellers writer in Edinburgh.
The disponee from Robert Davidson raised a reduction, reductive of Agnes's decreet; and the matter resolved into a competition for the mails and duties, betwixt William Sellers and George Cleughton, undertaker of coalieries at Newcastle, purchaser by progress from Robert Davidson's disponee.
The question now to be observed was, how far the subject adjudged, being conveyed before the adjudication, though subsequent to the inhibition, was affected thereby? Whether to the utmost extent an adjudication could be pleaded, or only as a security for the bond, without accumulations? Whereupon the Lord Ordinary, 22d November 1749, 'Found, that the inhibition secured the debt, and hail legal consequences thereof.'
Pleaded in a reclaiming bill, The stile of an inhibition is only securing the principal sum, annualrents, and penalty, contained in the bond; while the creditor's security for these is not impaired, the debtor may lawfully alienate his whole estate; and though it is the practice to sustain reductions on inhibitions, yet these are carried no further than to salve the creditor's right, as it is guarded by the inhibition; now the estate, being as to the surplus effectually disponed, cannot be thereafter adjudged for the disponer's debt; and so was found, Falconer 1683, Trotter against Lunden, Sect. 6. h. t.
The Lords adhered.
Pet. A. Macdowal.
D. Falconer, v. 2. No 122. p. 138.
