GEORGE SIMPSON & Ors v WILLIAM A GRAHAM (Court of Session)

Alexander Graham being infeft upon a bond and disposition in security, for L.4000, granted by William Smith, over his estate of Land, advertised the property for sale, in virtue of a clause in the bond to that effect; but no offerers having appeared, the sale was adjourned to a particular day. In the meantime, Simpson and others, as creditors of William Smith's deceased father, who had done diligence within the three years, instituted a process of ranking and sale of the whole heritable subjects to which the son had succeeded, including the estate of Land.

The usual interlocutor in the ranking and sale, allowing a proof of the common debtor's bankruptcy, &c., having been pronounced, Graham, the creditor in the bond, who had not previously made appearance in the process, presented a reclaiming note, praying ‘to recal the interlocutor; to dismiss the process; or, at all events, to allow the reclaimer to proceed with the sale, to the effect of his recovering the sums contained in the bond.’

At the advising, however, the reclaimer's counsel stated, that he did not insist in the prayer to dismiss the process, but only to be allowed to proceed with the sale; which he alleged would be no interference with that process; but which, at all events, the bringing of such action afforded the pursuers no title to prevent; Beveridge v. Wilson, 17 Jan. 1829.

The Court qualified the interlocutor, by finding, ‘that the proceedings in the process of ranking and sale have created no bar to the proceedings of the heritable creditor, in pursuance of his bond and disposition in security, without prejudice to the pursuers of said process making any competent application thereanent, and to the heritable creditor his defences as accords.’

Lord Mackenzie, Ordinary. For the Pursuers, Skene, Wilson. J. Yuile, W. S. Agent. For the Defender, G. J. Bell. T. Thorburn, W. S. Agent. T. Clerk.