CHARLES PEEBLES, Trustee on the Sequestrated Estate of James Harkness, v ROBERT WATSON (Court of Session)

The estate of James Harkness having been sequestrated, the pursuer was appointed trustee thereon, and was infeft in certain lands belonging to the bankrupt. At this time there was a bond and disposition in security over these lands, in the person of Watson, the defender, of which the trustee raised a reduction, on grounds which the Lord Ordinary ‘repelled,’ and assoilzied the defenders.

Thereafter, an objection was stated to the form of the security. The obligation to infeft was in these terms:—‘In which lands above disponed, I bind and oblige me, and my foresaids, upon my charges, to infeft and seize the said Thomas Harkness, and his foresaids, by two infeftments and manners of holding, and that either by resignation or confirmation, or both, the one without prejudice of the other,’ &c.

There was no obligation to infeft de me , nor was there any mention of a reddendo to be paid to the debtor as superior; and the precept of seisin contained a warrant to infeft in general terms. Infeftment was taken on the precept; but no confirmation followed.

It was therefore now objected that the seisin was ineffectual in a question with third parties, and that no confirmation could now take place, a medium impedimentum having been formed by the infeftment of the trustee.

The Lord Ordinary pronounced this interlocutor:— ‘In respect that the bond in question contains no obligation to infeft de me , and the sasine upon the precept is utterly ineffectual for the want of a confirmation; and in respect the summons of reduction contains no reasons of reduction applicable to the defect of the sasine, and that it will be necessary to apply to the Court for the proper remedy, if such will be given—appoints the parties to prepare informations upon the whole cause, in order that the case may be reported to the Inner-house.’