Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. V.

Clauses burdening Conveyances.

The Creditors of Robert Ross of Auchlossin, Competing

Date: 30 June 1714
Case No. No 62.

The Lords preferred debts, with which a disposition and infeftment of an estate were burdened, to all debts upon that estate, contracted by the receiver of the disposition; but preferred the preferable creditors among themselves, according to their respective diligence.

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The deceased Robert Ross of Auchlossin, having in the year 1702, disponed his estate to his eldest son Captain Francis Ross, with the burden of all just and lawful debts, whereupon the son was infeft; and in the year 1707, several Creditors of both father and son, having adjudged his estate; in a ranking and sale thereof, pursued by Robert Gordon, merchant in Bourdeaux, the Creditors of the father were preferred to the son's Creditors, in respect the disposition, charter and infeftment by the father, in favour of his son, is expressly burdened with the father's debts. But in a competition among the father's own Creditors, the Lords found the Creditors who had adjudged preferable to those who had not:

Albeit, it was alleged for the Creditors who had not adjudged, That those who had used diligence, could not affect the said estate by their adjudication, but, as it stood in the son's person, which was, with the burden of all the father's debts, which being real, must still affect the fee and right, as it stood in the person of the son, though it went through never so many hands. And quorsum a preference to one of the father's Creditors, before another, seeing they were all equally secured by the son's infeftment:

In respect, it was answered for the father's Creditors who had adjudged, That they ought to be preferred to such as have done no diligence; because, the charge in the disposition, being only a restriction upon the son's right, and making no real right in favour of the father's Creditors, but only producing a personal action against the son, and that he could do no deed in prejudice of the said burden; but it leaves the father's Creditors among themselves, as if no such burden had been, to be ranked conform to their diligence; and this will be clear from a parallel instance, viz. the Creditors of the defunct, by the act of Parliament 1661, have a legal hypothec upon his estate, in preference to the Creditors of the apparent heir, provided the defunct's Creditors do diligence within three years; yet, nevertheless, if some of these should adjudge, and others not, the Creditors adjudgers would undoubtedly be preferred, and carry off the estates.

The Lords gave this instruction to the Clerks, that bonds wherein Members of Parliament are co-obligants, may be registered in common form.

Fol. Dic. v. 2. p. 68. Forbes, MS. p. 72.