Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION IX.

Rights when presumed simulate.
Subject_3 SECT. I.

Disposition of moveables retenta possessione.

Mr George Liddel, Professor of Mathematics in the Marischal College of Aberdeen,
v.
George Davidson of Cairnbrogie

Date: 19 June 1711
Case No. No 250.

One who confirmed his debtor's household furniture as executor-creditor to him, was preferred to the receiver of a general disposition thereof to take effect at the disponer's death, though the receiver of the disposition had obtained possession after the disponer's death, before the confirmation.

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In the action at the instance of Mr George Liddel, as executor-creditor to William Bisset, merchant in Aberdeen, against George Davidson, intromitter with the defunct's household plenishing, for restitution or the value;

Alleged for the defender; That he had right to the said plenishing by virtue of a disposition from William Bisset, with an instrument of possession and symbolical delivery in his lifetime, which completed his right; as is clear, not only from the civil law, L. 1.C. De Donat. L. 1. § 21. L. 18. D. De acquir. et amitt. Poss. where the very pointing out of a thing and using the form of a delivery is equivalent to natural possession, and the disponer is understood thereafter to possess in the name and for the behoof of the other; nay further, the defender attained also the natural possession after the disponer's death before the pursuer's confirmation, which is a sufficient ground to prefer him.

Replied for the pursuer; The disposition with a symbolical delivery to the defender retenta possessione by the defunct, was feigned, and understood in law to have been for the granter's behoof; and, being a general disposition of plenishing, without relation to an inventory, it gave but jus ad rem, which required to be completed by confirmation; so that the subject disponed remaining in bonis defuncti, fell plainly under the pursuer's confirmation, which gave jus in re. Nor can the defender's possession after the disponer's decease be regarded, because it was but accessory to the former simulate possession, and altogether precarious, which could not hinder creditors to affect the goods as in hæreditate mobilium jacente; See June 1665, Procutor-fiscal of Commissariot of of Edinburgh and Procurator-fiscal of St Andrew's, voce Succession; and the practique June 15. 1624, Strachan contra Scot, voce Process.

The Lords preferred the executor-creditor.

Here the defender had allowed Bisset's relict to give up the plenishing to the Commissary of Aberdeen, in inventory as in bonis defuncti, and became cautioner that she should confirm the same, and make them forthcoming to all parties having interest.

Fol. Dic. v. 2. p. 157. Forbes, p. 508. *** Fountainhall reports this case:

William Bisset, merchant in Aberdeen, being debtor to George Davidson, he granted him a disposition of all his household plenishing, and by an instrument puts him in the possession thereof; but, in regard Bisset was married to his aunt, he suffers both of them to retain possession during their lives; and then, after their decease, he puts himself in the natural possession of the goods disponed. Mr George Liddel being likewise a creditor to Bisset, he confirms himself executor-creditor to him, and pursues Davidson rei vindicatione to deliver the goods to him; who founded on his disposition and symbolical possession granted to him for onerous causes, and so had a just ground to retain the goods for his payment. Alleged, Though your disposition be anterior to my confirmation, yet I am clearly preferable; for you suffered both the defunct and his wife to continue in possession of the goods disponed, and so præsumptione juris your right is simulate, being made retenta possessione. 2do, General dispositions not clad with actual and natural possession, do not divest the disponer of the property, but they remain still in bonis defuncti, especially prior to the 26th act 1690, taking away the necessity of confirming special rights; and therefore I having confirmed these goods as lying in hæreditate jacente, I have the first complete right; for your disposition is no better than if you had been nominated executor; in which case if I have prevented you, by confirming executor-creditor, I will be preferred. 3tio, You have plainly distrusted your own right, for you took the relict obliged to confirm the household plenishing, which you would never have done had your disposition and instrument of possession been a good and valid right of itself; and certainly confirmation was necessary ex concessis in competition with a creditor, as was found, 15th June 1624, Strachan contra Scot, voce Process; and such general dispositions give only jus ad rem, and are but a title ad inchoandam litem, but they must always confirm before extract, as was found, June 1665, Procurator-fiscal of the Commissariot of Edinburgh, voce Succession; and the Procurator-fiscal of St Andrew's against Hay of Balhousie, Ibidem. For a general disposition can no more defend against a creditor of the defunct's confirming, than of old a base infeftment not clad with possession defended against a public infeftment, before the 13th act 1693, taking away the difference. Answered, There was no pretence for simulation here, the onerous cause of the disposition not being so much as denied, and the symbolical possession fully denuded the disponer of the property; so that he was no more but a nudus detentor for my use and behoof. And that such instruments of possession complete the right, is evident from the parallel of a sasine, which is no more but a symbolical tradition, and yet perfects the right; and which is consonant to the Roman law, L. 1. C. De donat. 1. 1. § 24. 1. 18. D. De acquir. et amit. possess. by which the very pointing at a thing, though the natural possession be not apprehended, is equivalent in law; nec muto causam possessionis sed alium possessorem ministerio meo facio. And as to his allowing the debtor's widow to possess, and give up inventory, that can never give advantage to a third party, but only to her, as to whom he dispensed, and ceded his right during her life; and on the 27th July 1669, the Executors of Reidpath contra Home, No 39. p. 2792. an assignee, though unintimated, was preferred to an executor confirmed. The Lords preferred the executor-creditor to Davidson's disposition.

Fountainhall, v. 2. p. 647.