Scottish Court of Session Decisions

Subject_1 RANKING and SALE.
Subject_2 SECT. IV.

Form and steps of the process. Real creditors not in possession, how to be called? Creditors to bring a sale, must be in possession of the estate.

William Hamilton of Wishaw and Other Creditors of Cleland, Supplicants

Date: 7 July 1709
Case No. No 11.

The price set by the Lords on lands exposed to sale, lowered an year's purchase, on application from the creditors, representing, that nobody was like to offer so much, and that a division of the estate among them was impracticable.

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Upon a bill given in by the Creditors of Cleland, representing, That in the process of sale of that estate, albeit many diets had been kept for the roup, yet no offerer had appeared, or was like to appear, who would go to the ength of nineteen years purchase, which was the price put upon it by the Lords; and therefore craving that the Lords would lower the standard price; the Lords, considering that the lands held black-ward within a regality; that the debts exceeded the value thereof; and that a distribution of the estate among the Creditors was impracticable, and had been in vain attempted in the case of the Creditors of Kennet; therefore they granted warrant to expose the estate at eighteen years purchase as their price, and ordained the same to be intimated in common form.

Fol. Dic. v. 2. p. 311. Forbes, p. 339. *** Fountainhall reports this case:

1709. July 8.—Hamilton of Wishaw and other Creditors to the Laird of Cleland, gave in a petition to the Lords, representing, That the estate of Cleland being bankrupt, and a roup of it raised, and probation led, on the advising whereof the Lords had fixed the price at nineteen years purchase; but when the lands came to be exposed to sale, there were none appeared to bid, being discouraged by the highness of the price, the lands holding black-ward of the Duke of Hamilton, and lying within his regality, which made them far less worth than other well holden lands; and therefore craving the Lords would abate and diminish a year's purchase, to invite buyers, otherwise the Creditors will be the only losers, and the lands will never go off; and which the Lords did already in the case of Mr George Campbell. Answered, That the minimum quod sic of the price being constituted and established in a probation led, of what lands of that kind may give, betwixt buyer and seller, the same cannot now be altered, without reviewing and reconsidering the probation, which the Lords are not in use to do; and where lands cannot get a buyer, the act of Parliament introducing sales has provided a remedy by dividing the lands among the Creditors. But the Lords remembered, that this division had been attempted in the case of Bruce of Kennet and others, and was found utterly impracticable; and then observed that the probation of the value of lands, was only founded on credulity and opinion, some neighbouring gentlemen deponing they thought the lands worth so many years purchase, wherein the Lords themselves were as good judges as they; and finding here, from the holdings and other motives, a just ground of abatement, they brought down the price to eighteen years purchase. But for intimation to the lieges, they ordained new letters of publication to be executed before they should be again exposed to sale at that price.

Fountainhall, v. 2. p. 512.