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Sinclair v Sinclair. [1734] Mor 9444 (17 January 1734)
URL: http://www.bailii.org/scot/cases/ScotCS/1734/Mor2309444-028.html Cite as:
[1734] Mor 9444
Obligation to grant a Right. - Whether such an Obligation be equivalent, as if the Right were granted.
Sinclair v. Sinclair
Date: 17 January 1734 Case No. No 28.
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A person who had right to lands by disposition, containing procuratory and precept, without infeftment, granted a personal obligation to convey the same to one, and thereafter the disposition was adjudged by another. The creditor in the personal obligation pleaded-preference upon this medium, That an obligation to assign a personal right, is a virtual assigation, by which the common author was denuded before leading the adjudication, according to the brocard, that a personal conveyance denudes of a personal right. On the other hand, it was pleaded, That an obligation to grant a right may be equivalent to the right itself, where the question is with the obligant, but never can be in competition with third parties, especially where the right to be granted is a procuratory or precept, an obligation to grant which will be no warrant for infeftment. The Lords found, That the obligation to convey the disposition in question, did not transmit the same, but that it did remain in the debtor's person, subject to the posterior diligence of creditors.——See Appendix.
