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Scottish Court of Session Decisions >>
Mr. George Buchan v Sir William Cockburn. [1739] Mor 16469 (11 December 1739)
URL: http://www.bailii.org/scot/cases/ScotCS/1739/Mor3716469-008.html Cite as:
[1739] Mor 16469
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Lands being sold with the consent of a creditor, whose right was preferable upon that subject, as well as the other lands that remained with the seller, and the purchaser insisting against this creditor to communicate his debt and diligence to him, the purchaser, in order to protect him against the diligence of other creditors, the defence was, That consent in this case imports a non repugnantia, and not a conveyance. It was admitted, that the consent of a proprietor or creditor to a disposition of the whole subject affected by his right, is a virtual conveyance, for he can have no interest to withhold his right after he passes from all claim to the subject; but where a part is only disponed, a consent can imply no more than a non repugnantia, seeing it is of use to him to reserve his right quoad the subject not disponed. Found, That the consent in this case imports no more than a non. repugnantia.—See Appendix.
