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Scottish Court of Session Decisions >>
Dempster of Pitliver v Morrison. [1683] Mor 1066 (00 November 1683)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Mor0301066-157.html Cite as:
[1683] Mor 1066
This act found to extend to acquirenda, and that a debtor cannot dispone heritable rights acquired after diligence, by horning or inhibition, to the prejudice of the creditor using it.
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John Morrison of Daersie having disponed to Mr Hary Morrison an heritable right of 17,000 merks, due to the Earl of Southesk; and Mr John Dempster of Pitliver, having thereafter apprised that sum, and pursued a reduction of Mr Hary's disposition, upon the act of Parliament 1621, as being granted after the said John Morrison was bankrupt and at the horn; after which he could make any voluntary right in prejudice of the creditors that had done legal diligence against him.—Answered, That John Morrison, the defender's author, had no right to the sum at that time when diligence was done against him: But thereafter having acquired the right, he might dispose of the sum as he pleased, seeing the diligence against the said John Morrison could affect no estate but that which belonged to him the time of using the diligence.—Replied, That the act of Parliament is express; that after legal diligence is done against a person by horning, inhibition, arrestment, and apprising, he cannot make any disposition in prejudice of his other lawful creditors, their more timely diligence, and makes no distinction as to lands and rights acquired before or after the diligence. And if a party inhibited acquire lands, or other heritable right, after the inhibition, as he cannot dispose of the same, in prejudice of the inhibition; so neither can a person that is bankrupt and at the horn, dispone lands that he has thereafter acquired in prejudice of the creditors diligence.——The Lords found that the act of Parliament against dispositions, made by bankrupts, extends as well to acquirenda as to acquisita; and that the debtor must not dispone upon lands, or heritable rights, acquired after the creditors diligence by inhibition or horning, in prejudice of the creditor's debt and diligence; and therefore reduced the disposition and assignation made by John Morrison to the defender.
Fol. Dic. v. 1. p. 80. Sir P. Home, MS. v. 1. No 484.
