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Scottish Court of Session Decisions >>
Creditors of Rusco v Relict and Children of Blair of Borgue. [1729] Mor 3382 (00 January 1729)
URL: http://www.bailii.org/scot/cases/ScotCS/1729/Mor0803382-030.html Cite as:
[1729] Mor 3382
A preferable creditor can do no voluntary deed to prefer one secondary creditor to another; and if he take payment out of one subject, he is bound to assign to postponed creditors.
Creditors of Rusco v. Relict and Children of Blair of Borgue
1729.
January. Case No. No 30.
A preferable creditor, in particular circumstances, found not bound to assign.
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In the year 1685, M'Guffock of Rusco, heritor of the lands of Borgue, granted an heritable bond for the sum of L. 2000 out of the said lands, in favour of Irvine of Logan, whereupon the creditor was infeft the same year. Thereafter, the said Rusco granted a disposition of the lands of Borgue in favour of his second son David Blair, reserving a faculty to alter, bat which faculty he afterwards renounced in his son's contract of marriage. M'Guffock of Rusco being overcharged with debt, his estate, in the year 1727, was brought to a sale, and the said Irvine of Logan, who had adjudged all his debtor's lands for the above-mentioned debt of L. 2000, was ranked as a preferable creditor; and, upon his drawing payment, it was demanded by the other creditors, that he should assign them to his infeftment upon the lands of Borgue. This was opposed by the relict and children of Borgue, upon this medium, That by Rusco's disposition to his second son, and after consent in that son's contract of marriage, he became bound to warrant the said lands, the consequence whereof was, that had Irvine of Logan drawn his whole sum out of their lands, they must have been entitled to demand assignation against Rusco, bound to them in warrandice.—Answered, Rusco was never bound to warrant against Logan's debt; the disposition was under a reserved faculty to contract debt, alter, and dispose of the estate, &c.; and supposing the son had paid the debt, he could never have distressed his father for the same; and consequently, an assignation would have been fruitless and ineffectual; nor did ther father's after consent in his son's contract of marriage, which implied a renunciation of his faculty, alter the case: For this would not be drawn to import an obligation upon the father to warrant or relieve his son of the foresaid debt.——The Lords refused the assignation.
