Scottish Court of Session Decisions

Subject_1 ANNUALRENT.
Subject_2 Whether ANNUALRENT due to Creditors upon a Bankrupt Estate after a Sale?

Walter Carmichael
v.
Thomas Lockhart, Her Majesty's Land-Surveyor at Leith

Date: 25 June 1713
Case No. No 102.

After a judicial sale, a creditor, whose debt did not bear annualrent, had adjudged, and was preferred upon an inhibition: Found to have no claim, but for payment of his sum without annualrent.

Click here to view a pdf copy of this documet : PDF Copy

The estate of Muir of Annistoun being sold, by a judicial roup, to the Earl of Hyndford, in the year 1700; and, in a ranking of Annistoun's creditors, competing for payment out of the price in the purchaser's hand, Walter Carmichael, who had right to a personal debt not bearing annualrent, upon which inhibition was used, being preferred to the rest, in the year 1707, the Lords found, That Walter Carmichael, the inhibiter, being no real creditor affecting the subject of the estate at the time of the sale, hath no right to annualrent of the sum, for which inhibition was used, preceding the ranking, he not having adjudged till after it.

Albeit, it was alleged, for Walter Carmichael, That utcunque the purchaser be not obliged to pay the price to any creditor till he make up a real title for his security; yet the quota of the price, among the creditors themselves, is determined according to the ground of preference. So that he being classed with preference in the decreet of ranking, simply upon the foot of his inhibition, that entitled him to a share of the price as it lay in the purchaser's hand at the time of the sale; and consequently to draw annualrents thereof as accessory to the stock. Had Walter Carmichael adjudged, never so short while before the sale, he would certainly have drawn his share of the price, with annualrents of it from the date of the sale: And yet his preference could not have proceeded upon the adjudication, which had been posterior, by the space of several years, to other adjudgers. Now, how could he lose the annualrents of his share of the price for not adjudging, and yet could not be preferred upon an adjudication, but only upon his prohibitory diligence of inhibition? The case is to be supposed, as if the price were immediately to be divided at the sale, seeing the ranking was declaratory, and added no new right: If, then, the price had been divided at the sale, the inhibiter would have been preferred for the sums secured by his inhibition, and the purchaser's power of retaining, for his own security, till the other had established a real title, is jus tertii to the creditors.

In respect, it was answered, for Thomas Lockhart, That, had Walter Carmichael adjudged a little before the sale, he would have got annualrent because of his adjudication, though late, and drawn the principal, by virtue of his inhibition, out of the hands of prior adjudgers, cum omni causa, or with its accessory, that is annualrent falling due by the subsequent adjudication: But the inhibition entitled him to preference for no more than the sum therein, which did not bear annualrent; and the ranking him fictione brevis manus gave him no new right. Let it be supposed that the price of a common debtor's lands were to be divided among his creditors at the sale, the adjudgers would properly get the whole price, as a surrogatum of the subject affected by their diligence: All a personal inhibiter could do, if he did presently insist, were to force the adjudgers, posterior to his inhibition, to pay him his money; and if he did not insist, but lie off for the space of seven years, (which is the present case), he would still get no more than his money. Again, had the ranking preceded the sale, no doubt the inhibiter insisting had got his money either brevi manu from the purchaser, or long a manu from the adjudgers, after they had drawn the price, and then might have lent it for annualrent. But still so long as he doth not insist for payment, his money can bear no annualrent more than it would have done against the debtor, while there was no sale intended. The inhibiter hath no right to the lands or rents, and therefore no right to the annual rent of the price which belongs to the adjudgers, as the annualrent of the price of their lands.

Fol. Dic. v. 1. p. 44. Forbes, p. 689.