In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald’s man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson would grant him a heritable bond or a disposition in security. When she failed to do so, Ferguson raised proceedings for implement of this obligation and obtained a decree in absence on 4 July 1777. The following month, on 9 August 1777, the Mitchells, as creditors of Donald, obtained a decree of adjudication of the house against him and were infeft. Carson, however, raised a multiplepoinding and suspension of the decree in absence. The nature of feudal rights was such that they could not be affected, qualified or burdened by any personal deed and that a conveyance, so long as it continued personal, did not divest the disponee. ‘I know no safety to the feudal law, unless you prefer infeftments; for otherwise an imperfect right would be better than a complete one. There is great danger in departing from this feudal principle, but none in adhering to it. The disponee is safe, unless he is supinely negligent; for an adjudication cannot be taken on a sudden, and without the knowledge of many.’ Bell -v- Gartshore reasoning would apply even where the creditors didd not rely on the register when contracting with the debtor.
References: 3 Ross’s LC 120, 1781 M 10296, Hailes 879
Judges: Lord Braxfield, Lord Gardenston
Jurisdiction: Scotland
This case cites:
- Followed – Ireland v Neilson 1755 ((1755) 5 Br Supp 828)
A debtor had acquired the land by fraud.
Held: the adjudgers were affected by the debtor’s fraud, even if a purchaser would not have been. . . - Cited – Gibb v Livingston 1763 ((1763) 4 Br Supp 897)
. .
This case is cited by:
- Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (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)
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 . .
These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194229