Scottish Court of Session Decisions

Subject_1 INHIBITION.
Subject_2 SECT. IV.

Inhibition has Effect only against Voluntary Rights.

Gardner
v.
Bruce

Date: 23 June 1681
Case No. No 101.

Inhibition found not a sufficient ground for reduction of a posterior disposition, made in implement of a prior obligation.

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Patrick Gardner having apprised from William Baillie of Torwood-head, all right to the lands of Torwood-head, and being infeft thereon, pursues the tenants for mails and duties. Compearance was made for Michael Bruce, who craves preference, because he was infeft in an apprising against James Lord Forrester, of all rights he had to the lands of Torwood-head; and albeit Gardner's apprising and William Baillie his author's infeftment apprised, be prior to Bruce's apprising, yet both rights flowing from James Lord Forrester, he was inhibited upon the grounds of the apprisings, before he disponed to William Baillie his brother; and he repeats his reduction ex capite inhibitionis of William Baillie's right, which was a wadset from the Lord Forrester, as being after his inhibition, wherewith Gardner's apprising from William Bailie falls in consequence. It was answered for Gardner, That inhibitions do only reduce posterior voluntary rights, but cannot reduce William Baillie's right, because it was necessary, and James Lord Forrester might have been legally compelled to grant the same, in so far as, by his contract of marriage, Lieutenant-General Baillie was obliged to infeft the said William Baillie in an annualrent out of his lands, for security of 40,000 merks; in which contract by the general clause in the beginning thereof the whole contract proceeds with the mutual consent of Lieutenant-General Baillie, and James Baillie his son, thereafter Lord Forrester; and a disposition of annualrent de præsenti, with consent of any other party, would carry that consenter's right, and oblige him to grant infeftment; so the obligement of one, with consent of another to grant such an infeftment, doth oblige that consenter to grant the same. It was replied, that though special obligements to infeft in particular lands, anterior to inhibitions, hinder the party inhibited to perform in forma specified; yet here the obligement by Lieutenant-General Baillie was only general, and his son's consent can only import non repugnantiam, but could never compelled him to grant the infeftment himself. 3tio, The Lieutenant-General's obligement was to infeft in an annualrent, and his son's infeftment was a wadset in the property. It was duplied, that the wadset is expresly in implement of the Lieutenant-General's obligement, for securing William in an annualrent of 40000 merks, and the wadset is for the same cause, and to the same effect, bearing a proper wadset with a back-tack.

The Lords found, that the general consent to the contract of marriage, containing an obligement by Lieutenant-General Baillie, to infeft William Baillie in an annualrent effiering to 40000 merks out of the lands, was sufficient to oblige James his son consenter, getting right to all his father's lands, to fulfil that obligement; and that the wadset being granted expressly in implement of that obligement, albeit general, and not in the special terms of an annualrent, could not be reduced upon the prior inhibition against the said James.

Fol. Dic. v. 1. p. 474. Stair, v. 2. p. 881.