ROWAND v STEVENSON (Court of Session)

In consequence of this letter, the defender immediately prepared the bond in name of Mr Wardrope, and the instrument of sasine to be taken thereon; and, on the 15th December, sent these deeds to Mr Martin ‘in order that the same might be duly executed.’

As soon as the pursuer was informed that the bond had been executed, and the instrument of sasine entered in the record, according to the defender's directions, he advanced the money, and applied the greater part of it, with Mr Campbell's authority, to the purposes for which it was borrowed, including payment of the defender's account; and then remitted the balance to Mr Campbell.

Meanwhile, the assignation by Mr Wardrope, in the pursuer's favour, was prepared by the defender, and immediately executed. Thereafter (but at what particular time did not appear, the averments of parties, both on this point, and as to what passed on the ocsion, being at variance, and no witnesses being present) the whole deeds were delivered to the pursuer, and never came again into the defender's possession.

A few years after this transaction, Sir Colin and Captain Campbell lent a considerable sum to Mr Campbell of Lochend, on the security of the same lands.

At a subsequent period, Mr Campbell's estate was sequestrated; and, in the ranking of his creditors, it was objected to the pursuer's security, by Sir Colin and Captain Campbell, that the infeftment in favour of Mr Wardrope was totally null, in respect it had never been confirmed by the superior, and the bond, in virtue of which it was taken, contained no warrant for a base holding, the obligation undertaken by the debtor being only to infeft the creditor in the lands ‘to be holden from me, of and under my immediate lawful superiors thereof, in the same manner as I hold the same myself.’