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Scottish Court of Session Decisions >>
Trotter v M'Kello. [1676] Mor 10422 (18 February 1676)
URL: http://www.bailii.org/scot/cases/ScotCS/1676/Mor2510422-099.html Cite as:
[1676] Mor 10422
Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. V.
Personal Faculties and Privileges, whether they may be founded on directly by Creditors.
Trotter v. M'Kello
Date: 18 February 1676 Case No. No 99.
Reduction on death-bed found not competent to the creditors of a deceased heir apparent, unless he had been infeft in his life, or that the creditor had been infeft on apprising or adjudication against him.
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There was a reduction intented at the instance of the creditors of umquhile John M'Kello and his apparent heir, of a disposition granted by him on death-bed. The apparent heir being now dead, the creditors insist in the reduction. It was alleged for the defender absolvitor, because the privilege of reduction ex capite lecti, is proper to the heir, and now there is no heir insisting. It was answered, That the creditors have good interest to found upon the heir's privilege if he neglect the same, that the disposition being reduced, they may affect the lands, as was found in the case of the Creditors of the Lord Couper and Balmerino, (supra); and the Creditors of Mortonhall, (See General List). The defender replied, That theirs was only sustained at the instance of the creditors of the defunct, and which might be sustained at the instance of the proper creditors of an apparent heir during his life, yet if he die hæreditate jacente, the creditors having not apprised nor adjudged from him, they have no interest to reduce, because they cannot affect the defunct's lands for the apparent heir's debt, unless it be done during his life, and here the debts are the proper debts of the apparent heir, and he deceasing without infeftment either to him or his creditors. It was duplied, That there is another apparent heir concurring.
The Lords found, That the concourse of another apparent heir could not sustain this summons, and that the creditors had no interest now to reduce up-on the apparent heir's proper debt, unless he, or they in his right, had been infeft before his death.
Fol. Dic. v. 2. p. 79. Stair, v. 2. p. 418.*** Gosford reports this case:
In a reduction at the instance of the Creditors of William Brown of Burnsbank, and of his apparent heir, of a right and disposition made by his father to John Home of Kello ex capite lecti, there being a term assigned to satisfy the production and certification craved, it was alleged that there could be no process, because William Brown, the apparent heir of the disponer, was dead, and his creditors could have no interest, because they had no diligence by charging the apparent heir for adjudging or comprising his right of the lands, which could only give them a title to reduce his predecessor's deeds. It was replied, That the creditors having once intented action, and concurred with the apparent heir, might now insist in their own names, especially the apparent heir of William Brown their debtor having now given warrant to concur with them. The Lords did find, that the creditors of an apparent heir doing no diligence against him to settle his right in their person, cannot pursue a reduction of his predecessor's deed ex capite lecti, nor the apparent heir himself, unless he were served heir.
