Scottish Court of Session Decisions

Subject_1 FACULTY.
Subject_2 SECT. III.

Faculties when effectually Exercised. - Effect on Heirs. - Effect on Singular Successors. - Competition of Creditors claiming under Reserved Faculties.

The Children of Mouswall
v.
The Creditors thereof

Date: 16 December 1679
Case No. No 13.

Found in conformity with No 11. p. 4102.

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The Laird of Mouswall having disponed his estate to his eldest son in his contract of marriage, reserving to himself to affect or burden the same with 18,000 merks for his children's provisions and other affairs, whereupon he did grant bond to his many younger children for 9,000 merks, without a clause that the deceasing portion should belong to the survivors, so that by the death of the children there remained 5,000 merks due with annualrent, since the date of the bonds; the eldest son being infeft upon the contract of marriage, renews several bonds granted by his father to his creditors, who thereupon apprised the estate from another son, as representing his brother, and thence arose a competition betwixt these creditors and the children, which was disputed, and interlocutors thereon, on the 11th instant, whereby the Children were preferred. It was now further alleged for the Creditors, That this reservation to the father to burden, could import only an obligation upon the son, and could not be effectual against singular successors, especially seeing it was not exprest in the son's sasine, but only secundum provisiones in dicto contractu contentas; which if it were sustained sufficient, it would destroy all creditors, and evacuate the security by registration of sasines. 2do, Though such a clause could be real and effectual against singular successors, yet it being but a faculty to burden, that faculty could not be exerced, but legitimo modo, viz. by a valid infeftment in favours of the children; but here there is only a base infeftment, never clad with possession; and therefore the Creditors' public infeftment is preferable thereto. It was answered for the Children, That there may be obligements in infeftments merely personal, as the obligement to warrant; but where an infeftment is granted with a burden transit cum suo onere, always to singular successors, which is most ordidinary for provisions of children, that fathers infeft their eldest sons with the burden of such sums to their children, which sums become debita fundi, and affect the same even against singular successors, and has been the ordinary security for children, never contraverted. It is true, anterior creditors might reduce the same as fraudulent, if the father had not a sufficient estate to pay all his creditors, and these provisions likewise, as was found in this case; but if he might lawfully and without fraud reserve such provisions, the same were effetual to the children, and no anterior or posterior debt of the father's could exclude the same, in the same way as if the father had then perfected a valid infeftment to his children; and as to the generality of the reservation, whatever it might import as to creditors contracting thereafter, being ensnared by such a generality, yet it can have no moment as to the creditors, prior to the reservation; and as the reservation would have been beyond debate, if the father had disponed to the son, with the burden of 9,000 merks to his children, the power to burden is as real when exercised; for though it would have evanished, if it had never been exercised., yet it being exercised, it is as effectual as if it had been at first special, burdening the land with such a sum to the children; neither is there any special manner in the clause of burdening; and therefore the faculty was sufficiently exerced by granting bonds of provision by the father, expressly relative to the faculty reserved; and here there is not only the bonds, but a sasine thereupon, which cannot be excluded by the creditors' posterior public infeftments, because it is founded on a real cause, viz. the reservation in the son's infeftment; which infeftment being clad with possession in the son's person, is thereby effectual ad omnem effectum, not only as to the son, but as to the children by the reservation exercised by the father: Although the creditors had apprised from the father the lands with this reservation per expressum, the Lords have justly found, that he having a sufficient estate, both for his debts and their provisions, this faculty could not be exhausted by prior creditors, seeing it bears a power to take on and burden; much less can apprisings against the son, or the son's succcessors, for the father's anterior debts, renewed by the son, exclude the children's reservation.

The Lords found the reservation of the faculty to the father was not only personal, but a real burden upon the estate, so soon as it was exercised, and that it was exerced by the children's provision, and therefore preferred the children's provisions to the creditors' public infeftments upon their apprisings.

Fol. Dic. v. 1. p. 292. Stair, v. 2. p. 723. *** Fountainhall reports the same case:

The Lords found the reserved faculty became real as soon as it was exerced by the father, and that his granting bond and infeftment following thereon was a sufficient exercise and application of it, and that it could not be prejudged by the posterior diligence of creditors; and therefore preferred the children. See Appendix.

Fountainhall, MS.