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Scottish Court of Session Decisions >>
Johnston v Arnot. [1668] Mor 7803 (21 July 1668)
URL: http://www.bailii.org/scot/cases/ScotCS/1668/Mor1907803-033.html Cite as:
[1668] Mor 7803
Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.
Johnston v. Arnot
Date: 21 July 1668 Case No. No 33.
In a competition between two apprisers, it was objected by the one, that the other, being an assignee, produced no assignation. This plea found not jus tertii.
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Mr Samuel Johnston having comprised certain lands belonging to John Arnot, and having assigned the Laird of Collington thereto to his own behoof, infeftment was taken in Collington's name; after which, Mary Arnot, daughter to the said John, having comprised a part of the said lands, and having been many years in possession, James Johnston, son to the said Mr Samuel, being infeft upon Collington's resignation, and pursuing a reduction of the said Mary's comprising, it being a non habente potestatem, the father being denuded by the first comprising; there was likewise a reduction raised at the said Mary's instance, of the foresaid comprising, and infeftment following thereupon, which was repeated, by way of defence, against the pursuer's title upon two reasons; First, That the infeftment, taken in the name of Collington, was null, being without any warrant, the assignation and disposition made by Mr. Samuel to Collington not being produced. This reason was not sustained, because of this answer; that albeit the pursuer had nothing but a naked comprising, yet it being for a lawful debt, long prior to the bond of provision granted to the said Mary by her father, whereupon they might reduce her bond and comprising, she could not quarrel Collington's infeftment. The second reason was, That the comprising was for more than was due, in so far as Mr Samuel had comprised, not only for his own debt, but as assignee by Ingliston, to whom John Aiton was bound for relief of a debt paid by him, they being conjunct cautioners; whereas there being a mutual clause of relief, Ingliston could only seek his relief for the half of the sum. This reason was likewise repelled, the pursuer offering to restrict to the half of the sum, and declaring the legal reversion of the comprising not to be expired.
Gosford, MS. No 42. p. 15.
*** See Stair's report of this case, No 77. p. 958, voce Bankrupt.
