Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. I.

To Whom this action competent.

James Ogilvie, Son to the deceased James Ogilvie, younger of Boyne,
v.
David Earl of Leven

Date: 29 January 1712
Case No. No 66.

A bond being granted for the price of land by the purchaser to a third party, payable only after the seller should have purged all inhibitions used against him before the sale, that third party was found entitled to pursue reduction and improbation of inhibitions obstructing his payment.

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James Ogilvie having right by progress to a bond granted by William Hamilton of Wishaw, to Walter Boyston, for a part of the price of the lands of Weddersbie, sold to Wishaw by James Arnot of Fairnie, whereby Wishaw obliged himself to pay to Boyston 8000 merks at Martinmas 1669, provided always, That James Arnot did purge and take away all inhibitions raised and executed against him before the date of the disposition of the lands granted by him to Wishaw; he James Ogilvie insisted in a reduction and improbation against the Earl of Leven, wherein he called for an inhibition executed against Fairnie by the Earl of Melville, the defender's father.

Alleged for the defender; Though reduction of the inhibition called for might tend to the pursuer's advantage, that consequential interest could not furnish a sufficient active title in such a process, to him who is neither heir nor creditor to James Arnot of Fairnie, nor hath any pretence of right to the lands affected with the inhibition; more than an apparent heir could sue a reduction and improbation for clearing the inheritance of incumbrances; no man having interest to debar another's right but he that hath right himself. Besides, an absolvitor in this action would not be res judicata, to hinder Wishaw to plague the defender again with the like process. 2do, Esto, The bond had been granted for a part of the price of the land, the pursuer could be in no better case than an assignee to the price of land contained in a minute, who could not, by a reduction and improbation, purge these lands of incumbrances, for want of a title, although he could not claim the price till incumbrances were purged. Again, if no personal creditor can reduce a disposition of lands, June 24. 1709, Brown of Thornidykes against his Brother, voce Title to Pursue; far less can the pursuer, who cannot so much as pretend to be a creditor, or to have any interest in the lands affected, reduce or impugn any real diligence affecting the same.

Replied for the pursuer; Albeit a personal creditor cannot reduce real rights and diligences affecting lands, yet as Fairnie and Wishaw, deriving right from him, had each of them an unquestionable title to quarrel and reduce inhibitions affecting their land; so by the burdening the sum in the bond granted to Boyston, with the purging of the inhibitions, he became delegated as debtor for the performance; and their right or title is understood to be conveyed to him, since otherwise the bond granted to him had been elusory and of no effect. An absolvitor in this process would secure the defender against all action upon the foresaid bond, in whose person soever it may come, but not from pursuits upon separate titles. 2do, It is contended, That an assignee to the price of land contained in a minute, comes in place of the person obliged to dispone, and hath the same action competent to him for disburdening the lands that is competent to the principal contractor; and for the same reason an executor of a disponer of lands, who hath right to the agreed price, could purge incumbrances.

The Lords sustained the pursuer's title, and found the defender obliged to take a term to produce the inhibition called for.

Fol. Dic. v. 1. p. 445. Forbes, p. 581.