Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. VIII.

Of Second Gratuitous Alienations of the same Subject.

Alexander
v.
Lundies

Date: 15 July 1675
Case No. No 64.

A second assignation was first intimated; yet found reducible upon the act 1621; the first assignation being considered to be an anterior debt, by the warrandice contained in it. Both assignations were lucrative and gratuitous.

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Anna Lundie granted an assignation of 3000 merks to Anna Alexander her neice, being a part of the bond of 4000 merks belonging to her; and thereafter she granted an assignation to three sisters Lundies, also her relations, who made the first intimation. There are mutual reductions raised by both parties of these assignations, wherein it was alleged, for Anna Alexander the first assignee, that the posterior assignation ought to be reduced, 1st, Because the cedent, when she granted the same, was in a present expectation of death, and was not compos mentis, and having recovered, she disclaims the same, and hath confirmed her assignation to Anna Alexander, and concurs with her. 2dly, The posterior assignation ought to be reduced, as being fraudulent and null, contrary to the act of Parliament against double assignations and dispositions, and contrary to the act of Parliament 1621, against bankrupts; for the first assignation being granted, it imports a warrandice from the cedent's own voluntary deed, though it were not exprest, and the first assignee is creditor as to that warrandice, and thereupon may reduce any posterior assignation, without cause onerous, as being in prejudice and defraud of that warrandice. Ita est, This posterior assignation bears expressly for love and favour. It was answered for the posterior assignees, That they repeated the reasons of reduction, viz. that albeit their assignation was posterior, yet it was the more preferable right, because it was first intimate; and albeit a prior assignation for onerous causes might be a ground to reduce a posterior, yet where there are two rights, both gratuitous, that which is first compleat is preferable, and can never be reduced upon a prior gratuitous right incomplete; and albeit this prior assignation bear causes onerous, yet being granted betwixt aunt and neice, it is not instructed by its own narrative, but must be proven.

The Lords found the first reason relevant upon the incapacity of the cedent, to be proven by the physicians, and other witnesses above exception that were present; they found also, that though the posterior assignation, first intimate, was the preferable right, so long as it stood, yet it was reducible upon the first assignation, and the warrandice exprest, or implied therein, unless the posterior assignation had been for onerous causes.

Fol. Dic. v. 1. p. 69. Stair, v. 2. p. 347.