Scottish Court of Session Decisions

Subject_1 COMPETITION.
Subject_2 SECT. XI.

Apprisings and Adjudications with Voluntary Rights.

Mr John Steuart of Blackhall,
v.
The Adjudgers of the Estate of Corshill

Date: 15 July 1707
Case No. No 66.

In a competition betwixt adjudgers and a disponee in relief, infeft; the disponee found preferable to personal creditors, whose adjudications were posterior, notwithstanding of a reserving clause in his disposition, in favour of prior creditors.

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In the competition betwixt the Adjudgers of the estate of Corshill and Mr John Steuart of Blackhill, who craved preference upon a disposition of relief granted to him by Corshill, clothed with infeftment before the leading of their adjudications; it was alleged for the Adjudgers, That the disposition of relief could be no ground of preference; because it bears this clause, –That the granting thereof shall be nowise prejudicial to any former right granted by Corshill to his lawful creditors, of their just and true debts owing by him to them; whereby their anterior debts, though only personal were salved; because, 1mo, The exception is of any former right of their just and true debts owing by him to them, and not for their just and true debts; and the word of made the clause respect personal bonds, whereas the word for would more properly have related to real securities; 2do, The clause had been useless, had it reserved only prior real rights; for these could not be prejudicial thereby, and so needed not to be reserved; and verba debent aliquid operari; 3tio, Blackhall has looked upon that clause to be a reservation in favours of all the prior creditors, or else he would never have been at the trouble and expence to lead so many adjudications as he has done, for the very debts contained in the disposition; 4to, The words are to be interpreted contra proferentem, i. e. the party who ought to have cleared the meaning of them, and that is Blackball; the clause being ingrossed in favours of creditors in a right granted to Blackhall, who may blame himself that real were not distinguished from personal creditors.

Answered for Blackhall; The clause can only operate in favours of anterior real creditors; for, 1mo, The distinction betwixt of and for, which in that clause would signify one and the same thing, is frivolous; 2do, Though the words be not extended to personal creditors, they will operate very much; for there might have been many objections against the former voluntary real securities; yea, if they be extended to personal creditors, the disposition to Blackhall was to no purpose; seeing Corshill, at the granting thereof, had more debt than his estate was worth. It were absurd, that under the notion of verba debent aliquid operari, we should make them operari quidlibet, and that which overthrows the very design of the disposition; 3tio, The accumulating securities ex superabundante non nocet; and besides, Blackhall had good reason to adjudge notwithstanding his infeftment of relief, that thereby he might have a more direct security, which at length might became a sovereign irredeemable right; 4to, Any thing the creditors can draw from a contract where they were not parties, is rather strictly to be interpreted, considering that voluntary grants in favours of others, are not to be drawn too much in prejudice of the granters; 5to, It cannot be thought that by the foresaid clause, personal creditors were meant; because the design of the disposition and infeftment of relief, was to give Blackhall real security, beyond the personal security of relief that formerly he had, and consequently to put him in a better condition than other personal creditors; for the clause aforesaid was of the nature of an exception, the same upon the matter, as if it had been worded thus, ‘Excepting from this disposition any former right granted by Corshill to his creditors, of their just and true debts.’ Now, by the rule of interpretation, exceptio must be de regula; consequently this exception in a disposition for real security, must necessarily be understood of real rights; 6to, The clause cannot operate in favours of personal creditors; for, had these never adjudged, they could not by virtue thereof effectually disappoint a process of mails and duties at Blackhall's instance, founded upon his real right of relief; nor can it be any more effectual to them, now that they have adjudged; because the meaning of the provision was to secure the former rights of creditors in the state they then were, and not to fortify adjudications that then were not, and possibly would never exist; 7to, To show that by the disposition to Blackhall, a preference to personal creditors was designed, by another clause therein it is provided, That after his own payment by intromission, he should be comptable for the superplus intromission to Corshill's other creditors; which argues plainly, that Blackhall was to be first paid, and that these other creditors were the personal creditors; the real creditors being salved by the other clause preferring them to Blackhall himself.

Replied; To interprete the clause in Blackhall's sense, would make it altogether elusory; for the interest of prior real creditors would have been entire however; seeing, if their infeftments were valid, they were certainly secure; and though there had been nullities therein, they would have proved such diligences as might be a ground to reduce the posterior voluntary right in favours of Blackhall, upon the act of Parliament 1621; therefore the uselessness of the clause, if not extended to personal creditors, is a greater argument it should be extended to them, than it is to say, That the disposition to Blackhall would be to no purpose, if the clause were to be extended to personal creditors; for the disposition being his own evident, he who is in lucro captanto, and took it with a reservation in favours of creditors, ought not to be allowed to explain that reservation, so as they who are in damno vitando shall have no advantage by it; 2do, As to the clause whereby Blackhall, after relieving of himself, was to hold compt to the other creditors for the superplus rent, conform to his intromissions; that was upon supposition that he did intromit, and that the rents were sufficient to both; in which case, being only liable for actual intromissions, he might retain for his own satisfaction in the first place, and leave the rest to the other creditors. But that event of his intromission did not exist.

The Lords found, That the disposition by Corshill in favours of Blackhall, operates in his favour a preference to the personal creditors, who had not secured themselves by anterior preferable diligence.

Forbes, p. 182.