Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 REDUCTION

Alexander Irvine of Drum
v.
The Earl of Aberdeen, &c

Date: 27 June 1776

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Alexander Irvine of Drum, as heir of entail of that estate, brought an action of reduction, improbation, and declarator, for setting aside a variety of incumbrances affecting it, and, in particular, a decreet of ranking and sale of the estate as bankrupt. His reasons of reduction proceeded on the entail, and on fraud practised by the purchasers at the judicial sale, who were also the conductors of the ranking, in rearing up fictitious debts for making the estate bankrupt, and in bringing about a sale at an under value. The defender attempted to exclude, by producing the decreet of sale itself brought under challenge, which they contended was good against all mortals. They produced also a ratification of the defender's rights, by John Irvine of Drum, anno 1737, with a decreet of absolvitor, at their instance, against Alexander Irvine of Drum, who had pursued them to account, and for implement of certain articles relative to the sale; and it was contended, that, as the present pursuer represented both these lairds of Drum by a universal passive title, he was barred from challenging the decreet of sale. It was answered,—That to pretend to exclude, by producing the decreet of sale under challenge, was reasoning in a circle: and as to the other two deeds, these could never amount to an exclusive title, the last being only relative to certain articles, not to the sale in general; and as to the first, no ratification by a predecessor could prejudge his heir who claimed not as heir of line but as heir of tailyie. The Lords pronounced no judgment at first on the general point; but, 19th February 1767, before answer, they appointed the pursuer to give in a particular condescendence of the articles of fraud and other objections to the decreet of sale and of the other special reasons of reduction. They enlarged this, 5th March 1767, and extended it to the other deeds under reduction, viz. debts and incumbrances affecting the estate conveyed to the defenders. Condescendences were given in, and, 27th January 1769, the Lords found, “That the defenders were not bound in hoc statu to produce the writs and deeds called for.”

But, this interlocutor being reclaimed against, the Lords adhered, “without prejudice to the pursuer to call the defenders to account for any particular debt against which he alleges fraud, reserving all defences as accords.”

On an appeal, the interlocutors were reversed, and the defenders were obliged to produce the writs and deeds specially called for. They did so; the cause proceeded, and, 27th June 1776, the defenders were assoilyied.