Scottish Court of Session Decisions

Subject_1 INHIBITION.
Subject_2 SECT. IV.

Inhibition has Effect only against Voluntary Rights.

Brown
v.
Murray

Date: 8 March 1631
Case No. No 94.

Found also in conformity with Oliphant against Keith, No 91. p. 7015.

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A contract of alienation of lands, and infeftment following thereupon granted to Murray by his author who was his debtor, being desired to be reduced ex capite inhibitionis, executed at Brown the pursuer's instance, who was also creditor to the said defender's author of his right, and which was executed before this contract and infeftment desired to be reduced; and the defender alleging, that albeit this contract and infeftment was after the inhibition, yet seeing there was a preceding true cause of a lawful debt, owing by the common debtor to the excipient before this inhibition, for satisfying whereof, his debtor had contracted, and given him this contract and infeftment; so that albeit the same be after the inhibition, yet depending upon a preceding cause of just debt, as it was lawful for him to have taken payment of that preceding debt after inhibition, so it was also lawful for him to receive this infeftment for satisfaction thereof. This allegeance was repelled, and the preceding debt before the inhibition was not found a cause to maintain this contract and infeftment, albeit bearing to be given for satisfying thereof, seeing the said preceding bond of debt bore not that the debtor was obliged to give the creditor infeftment of these lands, quo casu the infeftment so given conform to that anterior bond might have been sustained, albeit subsequent to the inhibition; but the bond bearing no such clause, the infeftment and contract could not be sustained, albeit bearing to be done for implement of that bond, and satisfying of the debt thereof.

Act.———. Alt. Gibson. Clerk, Gibson. Fol. Dic. v. 1. p. 474. Durie, p. 577. *** This case is reported by Auchinleck.

In a reduction ex capite inhibitionis by John Brown of Inchafray against George Murray of Ardenne and David Murray of Kenkell, for reduction of a contract, and an infeftment made by the said George to the said David after inhibition was executed against the said George at the instance of the said John Brown, it was excepted by the said David, That he ought to be assoilzied from the reduction, because the sum contained in the contract and infeftment following thereupon craved to be reduced, was the duty of a tack set by the defender to the said George before the inhibition was raised and executed, and so he might lawfully take a new security therefor, notwithstanding of the inhibition. To which it was replied, That the decreet (if any was obtained) for the tack duty, was obtained after the inhibition, and being a voluntary deed of the party inhibited, cannot take away the force of the inhibition. The Lords repelled the exception in respect of the reply.

And this cause being again disputed 23d July 1631, the Lords reduced the said contract in so far as it might be a ground of infeftment for greater sums than were contained in the bonds made by the defender before the inhibition.

Auchinleck, MS. p. 109.