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Scottish Court of Session Decisions >>
Gardiner v Colvil. [1669] Mor 11500 (10 July 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Mor2711500-175.html Cite as:
[1669] Mor 11500
A father having purchased lands to an infant son, and having also taken infeftment in the son's name, the father's creditor, who afterwards apprised these lands, was found to have no right. See Stair's report of this case, No 48. p. 1314.
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In a deduction of a comprising led at Colvil's instance, as assignee by Ronaldson, in and to a bond of L. 68 Sterling, whereupon the lands of Ladykirk were comprised; which reduction was pursued at the instance of Gardiner's wife and children, as being infeft in the fee of the said lands before the comprising led against their father;—the assignation made to Colvil being produced, and bearing date in anno 1663, the pursuers offered to improve the same as being of a false date; and offered to prove, by the writer and witnesses, that it was truly dated in anno 1668. It was alleged for Colvil, That he had a true assignation dated in anno 1663, which being lost the time of the production, he did obtain this new assignation of the date of the former, and having since recovered the first assignation, he needed not make use of this last, but would take up the same. The Lords would not suffer him to take up the assignation, in respect it was judicially produced, and an act made thereupon. But, before they would sustain the improbation, they ordained the defender to declare, under his hand, upon what terms he would abide at the verity thereof, for the writing over of any writ and inserting the first date, not being done animo decipiendi, nor prejudging any party, will not amount to the crime of falsehood.
In the same process, the children's infeftment was not sustained to reduce the defender's right, who was a creditor, albeit it was alleged, that it was both prior and depended upon a contract of marriage, in respect that the father was only obliged by contract of marriage to provide the fee of his conquest to the children, and the infeftment given them was only base, the father retaining the possession during his lifetime; which the Lords found could not hinder creditors to contract with him, and to comprise for their just debt.
Fol. Dic. v. 2. p. 148. Gosford, MS. p. 65.
*** Stair's report of this case is No 48. p. 1314., voce Base Infeftment.
