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Scottish Court of Session Decisions >>
Horsburgh of that Ilk v Henry Davidson. [1750] Mor 2901 (16 June 1750)
URL: http://www.bailii.org/scot/cases/ScotCS/1750/Mor0702901-102.html Cite as:
[1750] Mor 2901
A person inhibited granted an heritable bond to another creditor, and then an heritable bond of corroboration, accumulating interest, to the inhibiter, who adjudged thereon.
The inhibiter was preferred on his first bond; after him the annualrenter; then the inhibiter for the accumulations in his bond of corroboration.
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Thomas Cranston of Birkhillside, being debtor to Horsburgh of that Ilk by bond, was inhibit by him; after which he granted first an heritable bond to Henry Davidson tenant in Mowhaugh, who was infeft; and then an heritable bond of corroboration, accumulating the interest due to Horsburgh, who was also infeft; and adjudged upon it, without mentioning in his decreet, his original bond.
Other creditors adjudged, and they were ranked on the debtor's estate, Henry Davidson primo, and Horsburgh secundo loco; and the other adjudgers fell without the price.
In making up the scheme of division, pleaded for Horsburgh, he must draw from Davidson, ranked before him on his infeftment, upon a debt struck at by his inhibition, his debt, in so far as secured by the said inhibition.
Pleaded for Davidson, Horsburgh's heritable bond, on which he led his adjudication is not secured by the inhibition; consequently he cannot, upon it, draw any thing from Davidson, who is ranked before him: His adjudication on which he is ranked, and can only draw, does not proceed upon his original bond; and if he should pretend that his bond is secured, on which he may adjudge, such adjudication could draw nothing, as being excluded by the other adjudgers, with whom it could not be brought in pari passu; and consequently could be no ground of reduction ex capite inhibitionis, the debt contracted, spreta inhibitione, being of no prejudice to a security which could not draw. A debtor, by bond, being inhibited, and afterwards granting a bond of corroboration, on which the creditor adjudged, it was found the bond of corroboration, and adjudication upon it, could not be supported against the inhibition by the original bond, Fountainhall, v. 1. p. 706. 29th January 1696, Wilson and Logan Penman, voce Inhibition.
Replied, If it were necessary for Horsburgh to adjudge again on his first bond, such adjudication would be effectual to reduce Davidson's bond on the inhibition; for the other adjudications, which are themselves excluded by infeftments, cannot be brought into consideration, to hinder him from drawing; but, without this necessity, the inhibition secured the debt on which he was infeft, and has adjudged.
Duplied, An inhibition does not secure a ground of debt, but the bond, decreet or process on which it is led.
The Lords, 5th June, found that Henry Davidson could make no use of his infeftment, to the prejudice of the bond on which the inhibition was led: and therefore that Horsburgh was preferable to, and behoved to draw back from Davidson the principal sum and interest contained in the bond on which the inhibition was led; and appointed the scheme of division of the price to be made out accordingly: and this day refused a bill, and adhered with this explication, that Horsburgh behoved to be paid first the sums due upon his first bond; that Davidson behoved to be paid after him upon his infeftment; and Horsburgh tertio loco on his bond of corroboration and infeftment.
Reporter, Monzie.Act. H. Home.Alt. Fergusson.Clerk, Forbes.
Fol. Dic. v. 3. p. 154. D. Falconer, v. 2. No 139. p. 163.
