Scottish Court of Session Decisions

Subject_1 TITLE TO PURSUE.

Mr John Kennedy of Kilhinzie, Advocate,
v.
Sir James Agnew of Lochnaw, and Others

Date: 17 February 1713
Case No. No. 51.

An inhibition without an adjudication on the ground of it, sustained as a title for reducing posterior voluntary deeds, whereupon infeftment followed.

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Mr. John Kennedy, as assignee by his father to a personal bond, and inhibition thereon, granted to the cedent by the late Earl of Cassillis, pursued reduction ex capite inhibitionis, of several rights of superiority granted by the Earl to Sir James Agnew and others, completed by infeftment.

Answered for the defenders: No process can be sustained against them at the instance of the pursuer, who is only a creditor to their author by a personal bond; because, 1mo, If a removing from possession only cannot proceed without an active title by infeftment, far less should real rights clothed with infeftment be removed and taken out of the way by a personal creditor, conform to the rule, Unumquodque dissolvitur eodem modo quo colligatur. 2do, As no heritable right whereupon infeftment hath passed can be arrested till it be made moveable, for that till then the arrester cannot insist in a forthcoming, so a paritate rationis, a personal creditor cannot reduce real rights, because he hath no right to the subject conveyed. 3tio, Inhibition being only a prohibitory diligence, to hinder the person against whom it is served to alienate heritage, to the inhibiter's prejudice, the inhibiter cannot reduce any such alienation, till he hath affected the subject by some real diligence, because, till then, he can qualify no prejudice; and inhibition at the instance of one personal creditor doth not hinder another personal creditor by bond before inhibition adjudging thereafter the common debtor's estate, to be preferred to the inhibiter; Stair, Instit. Lib. 4. Tit. 50. §19. Quia sibi vigilavit; so that reduction at such an inhibiter's instance would be vos non vobis, &c. 4to, If a personal creditor should be allowed to reduce ex capite inhibitionis rights completed by infeftment, the property of heritage would hang in pendenti; there would be dominium sine domino, till the inhibiter were pleased to make up a title; vassals could not be entered, or the superior would want a vassal; and the land be either laid waste, or the rents suffered to perish in the interim in the tenants' hands; seeing the reducer hath no title to possess; the person whose right is reduced is barred by the reduction; and the common debtor denuded in his favours could not return to possess.

Replied for the pursuer: His inhibition entitles him to reduce the rights in the defenders' persons, though infeftment hath followed thereon; because, 1 mo, The act 119. Parl. 1581, bears, That inhibitions and interdictions are used against the lieges for rescinding contracts, infeftments, &c.; and President Spottiswood, p. 178. observes a practick betwixt Monteith and Halyburton, No. 18. p. 6947. where inhibition was found to give an interest to reduce any posterior deed in prejudice thereof, albeit infeftment had followed upon that deed. Thus, in parallel cases, reduction ex capite lecti is competent to personal creditors; November 25, 1669, The Creditors of Cowper against the Lady Cowper, No. 25. p. 3203. And reduction, upon the acts of Parliament 1621 and 1696, concerning bankrupts, may be pursued by any creditor. 2do, The nature and stile of inhibition prohibits not only personal alienations, but also the granting private and public infeftments; consequently, law affords action for reducing such rights granted lege prohibente. 3tio, It would expose inhibiters to a vast inconveniency, to oblige them to expede adjudications before they know the import and effect of their inhibition, on which all their interest in the subject depends; but it is more agreeable to the rules of reason, first to bring back the property to the debtor by reduction, and then to adjudge.

Duplied for the defenders: It is true, apparent heirs, without service or infeftment, have interest to reduce rights whereupon infeftment hath followed, either ex capite lecti, or upon the head of idiotry; because, 1mo, They have a present prejudice in being excluded from their possessory right, which otherwise would entitle them to mails and duties, and so is aliquale jus in re; 2do, When the heritable right is reduced at an apparent heir's instance, there is no vacuum in dominio, but the reducer sustinet personam defuncti; 3tio, Till the heritable right granted be removed, he cannot serve heir; since the inquest cannot return answer to that head of the brieve, that the person to whom he craves to be served died last vest and seised. None of which reasons take place in the present case, of a reduction at the instance of a personal creditor, ex capite inhibitionis, who hath no real prejudice till he acquire jus in re, which he may do in the course of law, without any necessity of a previous reduction; and so long as he declines to make up a title to the subject, it were hard to oblige third parties to open their charterchests to him, by production of their writs. The allegeance, That personal creditors may reduce real rights, upon the act of Parliament 1621, is redargued by the late decision, June 24, 1709, Brown, younger of Thornydikes, against Brown, his brother, No. 48. p. 16101.

The Lords found, That the inhibition is a sufficient title to reduce the infeftments granted by the Earl to the defenders.

Forbes, p. 668. *** Dalrymple reports this case:

Mr. John Kennedy pursues a reduction of certain bonds granted by the Earl of Cassillis to Agnew and others, with the adjudications and infeftments following thereupon, ex capite inhibitionis.

The defender alleged: No process for reducing the defender's real diligences and infeftments, because the pursuer hath not affected the lands adjudged by the defender by any real diligence, and consequently hath no interest to call the defender's rights to these lands, or mails and duties thereof, in question; for an inhibition cannot simply reduce posterior deeds, but only in as far as they are hurtful or prejudicial to the debt on which the inhibition is used; and as long as the inhibiter hath no real diligence against the lands in question, he is not prejudged, because, if the defenders' posterior rights had not been granted, or diligence done thereupon, the pursuer could have had no access to the rents of the lands adjudged by the defenders.

It was answered: Inhibitions are good titles of reduction for reducing all posterior voluntary rights in prejudice of the pursuer's debt and diligence that may follow thereupon; and it were of no advantage to the defender, nor any ways reasonable, to put the inhibiter to the expense of real diligence, until the effect of his inhibition were first tried; and this case was determined in terminis, as is observed by Spottiswood, Inhibition, No. 18. p. 6947. where the same allegeance being proponed for the defenders, who stood infeft upon comprisings, and seven years in possession, and alleged the legal was expired, yet the Lords repelled the allegeance, in respect the inhibition gives a good interest to reduce any posterior deed in prejudice of the inhibiter; and it happens frequently in rankings, that inhibiters do compear, and are admitted summarily to reduce; and it would occasion a great delay if it were otherwise.

It was replied: That the later practice hath not allowed inhibiters to reduce real diligence upon the forementioned reason, that they cannot affect the rents upon their inhibitions; and albeit in rankings there be an indulgence as to this point, for the expedition of sales, yet that is not to be extended to other cases.

“The Lords sustained the pursuer's title to insist in a reduction ex capite inhibitionis without an adjudication.”

Dalrymple, No. 99. p. 140.