Scottish Court of Session Decisions

Subject_1 DEBTOR AND CREDITOR.
Subject_2 SECT II.

A preferable creditor can do no voluntary deed to prefer one secondary creditor to another; and if he take payment out of one subject, he is bound to assign to postponed creditors.

Mr Henry Ramsay
v.
The Bank of Scotland

Date: 13 June 1729
Case No. No 31.

A purchaser of an estate who had purchased a preferable debt, affecting both that estate and another, was found to have no claim on the separate estate, but that the debt was extinguished confusione.

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A creditor, ranked in the second place, did, after the ranking, purchase in the preferable debt, and having these two rights in his person, he became purchaser of the estate at a public sale, and gave bond for the price, payable to the creditors as they were ranked; the preferable debt purchased in by him, as said is, did not only reach over the lands purchased by him at the public roup, but also over a separate subject belonging to another. The fact was, that the price of the lands, sold publicly, was but sufficient to answer the preferable right; and therefore, the purchaser, willing to bring his secondary claim within the price, craved payment of his preferable right, entirely out of the separate subject; which the Lords refused, and found, That the said debt, being in the person of the purchaser of the lands, upon which it was ranked primo loco, which purchaser granted bond for payment of the price to the creditors as ranked, the said debt became eo ipso extinguished confusione, and could not revive to be a charge upon the separate subject. See Appendix.

Fol. Dic. v. 1. p. 224.