Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. IV.

Pactions, Declarations, &c. by Back-bond or otherwise, qualifying real Rights.

Brugh of Finmouth
v.
Forbes of Ballogie

Date: 14 July 1715
Case No. No 46.

A trustee in a disposition to lands, in order to sell them, gave a backbond to the disponer to account for the price. The Lords, in a competition betwixt the trustees creditors, and those of the disponer, preferred the latter, altho' the disponer was never infeft.

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Sir David Thoirs having acquired the lands of Wester-Lochgellie from William Malcolm; he, without being infeft, assigns the same to Sir Robert Forbes, who granted backbond, acknowledging he had paid no price, but that the right was granted to him, in order that he might sell the lands for relieving himself of what debts he had paid for Sir David, or should thereafter pay; and therefore obliged himself, that being so relieved, he should be accountable, and apply the balance to Sir David, his heirs, &c. And the backbond bears also, That Sir Robert should sell with consent of Sir David or William Thoirs, his nephew. David Brugh being creditor to Sir David, constituted the same by a decreet against his heir, and thereupon adjudged the lands and the foresaid backbond; Sir Robert made over his right to Mr Henry Scrimzour, who obtained himself infeft, and there being a part of the price yet in his hands, there falls out a competition about it, betwixt Brugh as creditor to Sir David, and Ballogie as creditor to Sir Robert, who as such, had arrested in Mr Scrimzour's hands.

And it was alleged for Ballogie, That in a former debate betwixt Mr Henry Scrimzour and David Brugh, wherein David had alleged the backbond granted by Sir Robert to Sir David did intrinsically affect Sir Robert's right, that Mr Scrimzour could not acquire any right but with the burden of his author's backbond; yet the Lords preferred Mr Scrimzour; and therefore Sir Robert's creditor arresting in Mr Scrimzour's hands is preferable for the price due to Sir Robert, which could not be affected by his backbond, but Sir David's Creditors must insist for implement thereof against Sir Robert as accords.

Answered for David Brugh, That though Mr Scrimzour was preferred, yet there was not the same reason for preferring Sir Robert's creditor; for the reason of Mr Scrimzour's preference was, his being purchaser bona fide from Sir Robert, and had compleated his right by charter, &c. so that the backbond could not affect him; but Sir Robert's creditor, who had only arrested the subject, can never be in better case than himself, who by his backbond, was to apply the superplus to Sir David, The reason is, that it is hard to tie purchasers who pay an adequate price, by backbonds that may be latent; but arresters and adjudgers only affect the subject as their debtor has it in his person, with its qualities; and therefore can never be in a better case than he himself. And this was so decided, 5th February 1678, Mackenzie contra Watson and Stuart, No 24. p. 10188. which was indeed a case of bonds for debt, but the reason of the decision hold likewise here. But there was a decision in terminis, 22d December 1680, Prince contra Pallat, No 39. p. 4932. which was under the Lords' consideration, when very lately they decided in the same manner, viz. 18th January and 4th February 1715, Simson's Creditors contra Maxwell, No 40. p. 4934.

Replied for Ballogie, That this was not a backbond of trust, but an obligement upon Sir Robert to pay the superplus price, just as if Sir Robert had given a bond to Sir David for the price.

Duplied for Brugh, That the backbond is granted of the date of the disposition, and Sir Robert bound to sell the lands, and apply the superplus to Sir David; now he does sell to Mr Scrimzour, and lying under an obligation to make the price furthcoming to Sir David, it is impossible Sir Robert's Creditors could affect this price to Sir David's prejudice; for whatever objection meets Sir Robert, must meet his creditors' arresters.

The Lords found, That Sir Robert Forbes was trustee to Sir David Thoirs by his backbond, in so far as concerned the superplus price of the lands disponed, over and above the payment and relief of debts and engagements, wherein Sir Robert was concerned with Sir David, and therefore found Finmouth ought to be preferred to Ballogie, as arrester.

Clerk, Mackenzie. Fol. Dic. v. 2. p. 65. Bruce, v. 1. No 118. p. 148.