Scottish Court of Session Decisions

Subject_1 RANKING and SALE.
Subject_2 SECT. I.

In what Cases may a Legal Sale take place?

Ranking of Hallgreen

Date: 24 January 1733
Case No. No 1.

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In the sale of the estate of Hallgreen, compearance was made for Burnet of I Monboddo, who had purchased a part of the debtor's lands long before the bankruptcy, and had applied the price to purge incumbrances, but had neglected an infeftment of annualrent preferable over the lands sold, as well as over those remaining with the common debtor. It was pleaded for him, That his lands ought to be struck out of the sale, seeing his case could not be reached by the act of Parliament, being neither debtor nor bankrupt. Answered, That quoad the annualrenter, the lands must be held as belonging to the bankrupt. Replied, The annualrenter may indeed follow forth his diligence by poinding the ground, which is all he is entitled to by the nature of his right. In this case, the annualrenter is in no worse situation than if his own debtor were not bankrupt; and there is no reason he ought to be in a better, which he would be, upon supposition he could sell his lands upon his debtor's bankruptcy; for no doubt he can bring them to a sale upon Monboddo's bankruptcy. The Lords found the lands purchased by Monboddo cannot be exposed to sale with the rest of Hallgreen's lands, but prejudice to the annualrenter to affect Monboddo's lands, as accords.—See Appendix.

Fol. Dic. v. 2. p. 310.