The bankrupt had undertaken to grant a bond in security of a loan over lands of which he was the proprietor. The description of the lands in the bond was of a part of the lands only, with the result that the security was inadequate. The question was whether the trustee was bound by the unfulfilled, and latent, obligation to grant a bond over the remainder.
Held: When a creditor attaches the estate of the debtor by an adjudication tantum et tale as it stands vested in him, and takes the heritable estate in which the debtor was infeft, subject to no limitation or burden which does not appear on the face of the records, and his moveable estate under such conditions only as qualify his real right, but free from all his personal liabilities. ‘It is a rule established with us, beyond all memory, that there are no equities in competitions among creditors. This principle was adopted, and carried to its fullest extent, in the case of the Duke of Norfolk in 1752 . . . It has been held, that vigilantibus non dormientibus jura subveniunt; and although no one ought to become locupletior aliena jactura, yet in damno vitando, every one is entitled to avail himself of the blunders of those whose interests are opposed to his. However clear and honest the intentions of parties may have been, yet, if the writings used are liable to objection in point of form or solemnity, and still more, if, as in this case, they are defective in the substantial parts, they are in a competition held as inoperative and null . . . So, after a competition has begun, a party conscious of a defect in his own right may, by any lawful means, but always without the aid of the bankrupt, direct or indirect, correct the defect pendente lite, so as to be preferred to his adversary, although formerly in a better situation than himself. On looking into the books of authority and the decisions of the court, to be found under the titles of Competition, Execution and Writ, it will be seen that the most minute and critical objections, in point of external formality, or arising from the want of proper and technical words in the instrument, have been sustained. In such circumstances, and notwithstanding the most satisfactory evidence of intention to give a right, the existence of another deed, followed with infeftment, before the former one has been completed, must create an undoubted preference.’
References: (1833) 11 S 813, (1835) 1 S and Macl 203
Judges: Lord Corehouse
Jurisdiction: Scotland
This case is cited by:
- Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
(2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194227
