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. XV.

Of Alienations to singular Successors.

Mr David Guthrie and Alexander Williamson
v.
Mr William Gordon, Advocate

Date: 2 February 1711
Case No. No 121.

A disposition to a conjunct person, bearing to be for security of a sum owing to him, by the granter, solvent at the time, not having been quarrelled for 58 years; found that a singular successor to the receiver of the disposition was not, in competition with anterior creditors of the granter, obliged to prove the onerous cause otherwise than by the narrative.

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In the process at the instance of Mr David Guthrie and Alexander Williamson, who stand infeft in annualrents out of the teinds of Balcomy, against Sir William Hope the purchaser, for payment of the price: Mr William Gordon craved to be preferred upon a disposition of these teinds granted by Sir James Lermonth in anno 1654 to Sir William Gordon of Lesmore his son-in-law, bearing for security of 4000 merks owing by Sir James to Sir William; and also upon two expired apprisings of these teinds in the same year 1654; to which disposition and apprisings Mr William Gordon hath right by progress. Mr David Guthrie and Alexander Williamson alleged, by way of reduction upon the act of Parliament 1621, That the disposition, being inter conjunctas personas, could not prejudice them anterior onerous creditors, unless the onerous cause thereof were instructed aliunde than by writ itself. 2dly, Albeit that were instructed, the pursuers offer to prove that Mr William Gordon and his authors were more than satisfied of the 4000 merks, by their intromission with the teinds.

Answered for Mr William Gordon. Esto the disposition had been gratuitous, it cannot be quarrelled, because Sir James Lermonth was solvent in the 1654 when he disponed, and had an estate sufficient to pay the 4000 merks and all his anterior debts; nay, his affairs turned not in disorder till after his death, when he could not be said to defraud his creditors, Stair, Instit. lib. 1. tit. 9. p. 82. (84.) And the disposition not being called in question for fifty-eight years, the narrative of it must be sustained to instruct its onerous cause, which, after so long a time, cannot be otherways proved. 2dly, Non relevat, that Mr William Gordon intromitted with as much of the teinds as would pay the debt: Because he had a right to two expired apprisings before any intromission, to which he ascribed his possession as the most profitable titles, and so is not countable for his intromissions.

Replied for the pursuers, They need not say that Sir James Lermonth at the date of the disposition to his son-in-law was bankrupt; but it is insufficient to annul that right, that the granter's estate was then incumbered by many infeftments of annualrent and apprisings, whereby in eventu he became insolvent, Feb. 6. 1663, Lourie contra Dundee, No 40. p. 911.; February 10. 1665, Craig contra Lourie, No 56. p. 931.; Dirleton, Decis. June 30. 1665, Clerk contra Stuart, No 46. p. 917. Stair, Instit. p. 82, (84.) and Mackenzie upon the act 1621. For when an estate is incumbered with debts and diligences, it is more reasonable that a conjunct and confident person should want a donation, than an anterior creditor be frustrated of his just debt. Upon which account, the Lords are in use to rank children for their bonds of provision ultimo loco, though equal in diligence with other creditors, February 10. 1688, The Creditors of William Robertson, No 83. p. 969.; the case of the Creditors of Cardon, anno 1700, voce Provision to Heirs and Children; and the late Competition of the Creditors and Children of George Marshall, voce Adjudication, p. 47. Albeit infeftments granted to children foris-familiate, when the granter's credit was entire and unquestionable, have been sometimes sustained according to their dates. 2dly, Mr William Gordon and his author having once entered to possess the teinds by virtue of the disposition a redeemable right, they could not invert the cause of their possession, and liberate themselves from counting by purchasing expired apprisings. Besides, the apprisings founded on cannot defend him from counting, because they were reduced or opened in the ranking of the creditors of Balcomy.

Duplied for Mr William Gordon, Albeit his apprisings were opened and turned to securities for the true debt, because of some nice informality; yet any prior intromission thereby was bona fide, and the sentences reducing or opening had no retrospect to make the intromitter liable for bygones, July 19. 1664, Douglas and Sinclair of Longformacus contra Laird of Wedderburn, Stair, v. 1. p. 117. voce Bona Fide Consumption; February 17. 1624, Thomfon contra Law, Durie, p. 111. voce Bona Fide Consumption; January 18. 1677, Dick of Grange contra Oliphant, Stair, v. 2. p. 496. voce Presumption. For voluntary rights, as well as apprisings, may chance to be reduced upon nullities or prior diligences: And if apprisers be holden to count for fruits bona fide uplifted and spent, purchasers by consent would run the same fate, which would mightily unsettle all manner of property.

The Lords found, That Sir James Lermonth having been solvent in the 1654, the time of granting the disposition, and the same never having been quarrelled for so many years; Mr William Gordon cannot now be obliged to prove the onerous cause thereof. And found, That Mr William Gordon instructing that he had the rights of apprising (then unquarrelld) in his person, the time of his entering to possession of the teinds, as well as the voluntary right by disposition; he can ascribe his intromissions wholly to the apprising medio tempore till the same were found to he only a security for the sums therein contained; and preferred Mr William Gordon's disposition to the infeftment of annualrent. See Indefinite Intromission.

Fol. Dic. v. 1. p. 75. Forbes, p. 492.