Mutual Contract – Personal and real – A creditor by adjudication, with an unexpired legal and without infeftment, enters into an agreement with two other creditors, by which he consents that they shall be paid before him; in a competition between a singular successor of the adjudger with notice, and the representatives of those two creditors, it is found that the preference in the contract was perpetual, and that as it concerned a personal subject on which no infeftment had followed, it was effectual against the singular successors of the contractors.
Fraud – A creditor pursuing a judicial sale, enters into a contract before the sale to sell to a third party at a certain sum; he afterwards, at the sale, purchases for a smaller sum, but is obliged to account for the larger sum, which had been paid to him on terms of the prior contract.
Bona fides – A purchaser at a judicial sale having paid a debt bona fide to creditors ranked before him; in accounting to creditors who were prior to both, has allowance of such bona fide payment; but action of repetition is reserved to the prior creditors.
[1720] UKHL Robertson – 317, (1720) Robertson 317
Bailii
Scotland
Contract
Updated: 05 January 2022; Ref: scu.553651