An action by a mortgagee in possession or an adjudger (see Adjudication), or by the heir, for having the estate of the debtor or ancestor sold, and the price applied in payment of the debts of the creditors, according to their legal priorities.
Definition source
Kinnear, J. B., Digest of House of Lords Cases Decided on Appeal from Scotland, 1709-1864 — Glossary of Scottish Law Terms (Edinburgh, 1865). Public domain.
Legal Subject: Ranking and Sale |
| Case | Date | Legal Subject | Abstract |
|---|---|---|---|
| Dunn v. Johnston, et al | 1796 | Creditor, Adjudication, Interlocutor, Ranking of Creditors, Ranking and Sale, Diligence | Mr Johnston of Carnfalloch petitioned the Court to alter an interlocutor of the Lord Ordinary that postponed his interest in the ranking, on the basis that the adjudication had been led after certification. The respondents answered, disputing the argument that an adjudication obtained after certification should be ranked with preference. |
| Ferrier v. Grant, and Others | 1780 | Trustee, Ranking and Sale | This case was about the standing of an individual creditor to raise objections regarding a judicial sale, where a trustee had been appointed to act for the creditors' common interest. Thomas Fairholm and Adam Fairholm became bankrupt and conveyed their estate to Ludovick Grant, who was appointed trustee for the Fairholms’ creditors. All of the creditors acceded to this arrangement. Grant then obtained a heritable bond over lands belonging to Samuel Garbet, Francis Garbet, and Charles Gascoigne, who were Fairholm’s major debtors, and pursued a judicial sale based on that bond. However, Helen Ferrier, a creditor of the Fairholms, objected that certain lands had been omitted from the sale. In particular, Ferrier argued for the inclusion of lands to which Gascoigne had renounced his liferent rights after the proceeding commenced. In response, Grant and the other creditors claimed that the disputed lands were of no value. They also argued that Grant, as trustee, held all rights to the creditors’ debts and to the bond upon which the sale was based, and therefore that he was the only person entitled to take action on them. Similarly, they argued that only Grant, as pursuer of the sale, had standing to object to the omission of the lands. Ferrier responded that Grant held the debts and the bond for the benefit of the creditors, and that she, as a creditor, was also entitled to rely on them. |
| Hamilton v. Hamilton's Creditors | 1777 | Ranking and Sale, Process, Adjudication | In 1761, George Hamilton inherited Easter-Queenslie and Provanhall from his brother, Robert, along with some heavy debts. Hamilton later accumulated additional debts, and his other brother, John, acted as cautioner for many of them. In 1769, George Hamilton executed an absolute disposition in favor John over the Wester-Mailing of Easter-Queenslie, as security over the aforementioned debts. Over the years George Hamilton granted other wadsets to his creditors over other parts of his estate. By 1773, he had gone bankrupt, and the Court sequestrated the rents of his lands. George's brother, John, petitioned the Court to strike the Wester-Mailing of Easter-Queenslie from the estate sale, given the disposition held by him. The other creditors of George Hamilton objected to this petition, arguing that Hamilton's disposition, being in fact a security, did not endow him with preferable ranking. Furthermore, they argued that because Hamilton had received a confirmation of his interest only in 1776, after the ranking of the sale had begun, his confirmation was null and void. To this John Hamilton responded that regardless of the details of his disposition, "at all events he has security on the lands, and it is a matter of no great importance to him whether he be considered as real proprietor under the [aforesaid] personal obligation, or a preferable creditor." Handwritten marginalia indicates that the Court repelled the objections. |
| James M'Harg v. Marquis of Tweeddale | 1782 | Ranking and Sale | This case encompasses two phases of a ranking and sale brought by George Hay, Marquis of Tweeddale, against the estate of the late James M’Harg of Keirs. In the first phase of the case, the Court of Session considered technical questions relating to the claims of a creditor, also named James M’Harg. In the second phase, the Court considered a challenge by creditor James M’Harg’s to the Lord Ordinary’s interlocutor of ranking. |
| Lamont v. The Heritors of Urr | 1796 | Teinds, Augmentation, Stipend, Ranking and Sale, Heritor, Interlocutor | The Reverend Dr. David Lamont pursued the heritors of the parish of Urr to remit an interlocutor approving their scheme of locality, asserting that he held a proper heritable right to the teinds. The heritors petitioned the court, arguing that Lamont’s right had been acquired pendente lite and was therefore protected by the principle of nihil innovandum. Lamont answered their petition, contesting this argument. |
| Miss Isabella Brown and Mandatary v. J. A. Cheyne and J. M'Kean | 1830 | Trustee, Ranking and Sale, Creditor, Disposition, Trust, Sasine | Miss Isabella Brown sued James Auchinleck Cheyne and John M'Kean for £500 and damages, alleging negligence in the defenders' purchase of Malta Terrace, Edinburgh on her behalf. The defenders answered, denying liability for the alleged negligence in the transaction. The litigation proceeded with reclaiming notes filed by both parties regarding interlocutory orders, including an argument by the defenders that Brown lacked title to maintain the action or to seek relief against their interlocutor. |
| Mrs Jean Hall v. Creditors of Robert Hall | 1784 | Ranking and Sale, Disposition | This case was about the ranking and sale of the estate of the late Robert Hall of Fulbar. Many years prior to the ranking, Robert agreed to pay his sister, Jean Hall, 2000 merks if she married with the consent of certain family members. The agreement provided that if Jean married without consent, or if she died without marrying, the 2000 merks would devolve to Robert. Robert subsequently granted Jean a bond of corroboration, which omitted the provision regarding Jean’s death before marriage. Later, Jean granted a disposition of the 2000 merks to her nieces and nephews, including the petitioner, Miss Jean Hall. When the ranking and sale commenced, Miss Jean sought to be ranked on the contract, bond, and disposition, but other creditors objected that that the elder Jean Hall had died unmarried. Miss Jean Hall argued that the marriage condition was unjust, that the bond of corroboration should take precedence over the contract, and that the elder Jean held a property right entitling her to dispose of the money. |
| Thomas Dunlop, and Others v. Walter Monteith and Co., and Others | 1778 | Ranking and Sale | This is one of several cases concerning the bankruptcy of James Dunlop Jr. After Dunlop became bankrupt, most of his creditors signed a “deed of concert” in which they agreed to work together to recover their debts. Further, some creditors pursued court adjudications of their debts, including those who had signed the agreement. Eventually, certain creditors initiated a ranking and sale of Dunlop’s estate, and a dispute arose over about whether the creditors should be ranked according to the trust-right or the adjudications. |
| Thomas Thorburn v. Thomas Ranken | 1832 | Debt, Creditor, Trustee, Ranking and Sale, Disposition, Interest | |
| William Graham v. The Creditors of Harry Graham | 1792 | Debt, Creditor, Succession, Ranking and Sale, Ranking of Creditors, Adjudication | William Graham, as heir of entail of the Hourston estate, challenged the claims of Harry Graham’s creditors, maintaining that their debts were invalid by reason of post-entail timing and defective adjudications. He further alleged that the common agent Mr Young had violated his duty to defend all parties equally by improperly using the common fund to support objections to the claims while simultaneously answering them. |
