Scottish Court of Session Decisions

Subject_1 TITLE TO PURSUE.

George Brown, younger of Thornidikes, and Others,
v.
Alexander Brown, second Son to Alexander Brown, of Thornidikes, Elder

Date: 24 June 1609
Case No. No. 48.

Personal bond not a sufficient title to the creditor to educe upon the act of Parliament 1621, a disposition of lands granted' by the debtor, although no infeftment: had followed thereon.

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Mr. Alexander Brown of Thornidikes, in his second son's contract of marriage with Mistress Betty Swinton, daughter to, Mersington, dispones to him his lands of Bassindean in 1706. His creditors taking alarm, raise a reduction on the act of Parliament 1621, as done in defraud of their anterior debts, inter conjunctissimas personas. Answered 1mo, The creditors, pursuers of this reduction, are only personal, not one of them having affected the lands of Bassindean by adjudication, or other real diligence, till which be, their personal bonds afford no title to quarrel his disposition; and as the lands are not really affected, so neither was Thorny-dikes, the disponer, incapacitate by horning, inhibition or otherwise, before the disposition he made of the lands of Bassindean, at the instance of any one of these creditors now pursuers. 2do, The act of Parliament 1621, takes only place in deeds done by persons insolvent to the prejudice of their anterior creditors; but where the disponer has a sufficient visible estate, able to pay all his debts at the time, subject to the creditors diligence, the Lords have always sustained that as relevant to support the right. The Children of Douglas of Mousual against the Creditors, No. 60. p. 934. and No. 80. p. 961; and 30th June 1675, Clark against Stewart and Watson, No. 46. p. 917. And it is offered to be proved, that Thornidikes, after disponing the lands of Bassindean to his second son in his contract of marriage, had an heritable or moveable estate far exceeding the debts now pursued for, which the creditors ought to affect primo loco, before they can disturb the defender, seeing contracts of marriage are onerous, containing a synallagma of mutual correspective obligations, et uberrima fidei. Replied, The personal creditors may crave reduction of personal rights, seeing the defender is not to this hour infeft on his disposition contained in his contracts of marriage. Indeed the point had been more strait, if he had been infeft in Bassindean, as he is not. And as to the second, of a sufficient visible estate besides these lands, nulla modo relevat, against extraneous creditors, who ought not to be put to these remote expiscations to grope in the dark and trace out their debtors estate per omnes regni angulos; but wherever I find he has disposed on a fund subject to my diligence, I may legally attack the same by reduction; and it is more reason, that the fraudulent purchaser be put to seek out these funds for his relief than creditors to diminish and lessen their fund of payment; and the decisions founded on, do not meet this case. The Lords, by a scrimpt plurality, found the creditors not having affected the lands by adjudging, nor done any diligence against old Thornydikes, prior to the said disposition made to his second son of the lands of Bassindean, they could not reduce his disposition, albeit infeftment had not followed thereupon, me referente.

Fountainhall, v. 2. p. 506. *** Forbes reports this case:

In the reduction at the instance of George Brown, younger of Thornydikes, and the creditors of Mr. Alexander Brown his father, against Alexander Brown his second brother, for reducing a disposition of the lands of Bassindean, granted to him by Mr. Alexander their debtor, upon the act of Parliament 1621;

Aledged for the defender: The pursuers being only creditors to old Thornydikes by personal bonds, had no title to reduce an heritable right granted by him.

Replied for the pursuers: Albeit reductions upon controverted preferences, nullities, and insufficiency of rights, must have a title of the same kind and perfection with that of the writ craved to be reduced; yet reduction upon the act 1621 is competent to all manner of creditors, real or personal, whether for onerous causes or not; and even to conditional creditors, before existence of the condition; or to creditors in diem., before the term of payment; or to creditors by a personal clause of warrandice, though the lands sold were not evicted.

Duplied for the defenders: The Lords never sustained reduction upon personal bonds, unless where diligence by inhibition or adjudication followed thereon. And if personal creditors, or creditors in diem or sub conditione, cannot effectually pursue the debtor himself, far less can they, by an extraordinary remedy, reduce real rights granted by him to third parties. If it were otherwise, the subject disponed would in such casest urn many years waste, and unpossessed; seeing the reducer could not possess before the term of payment, or the existence of the condition; and neither could the party whose right is reduced, nor the debtor himself who is denuded, possess.

The Lords found personal bonds, whether for payment of debts, or relief of cautionry, not a sufficient title to reduce a disposition of lands granted by the debtor, although no infeftment had followed thereon.

Forbes, p. 336.

*** This case is in opposition to what was decided in the case of Mackenzie against Campbell, No. 45. p. 16099. supra, and in that of Forbes against Earl of Aberdeen, No. 7. p. 15003. voce Sunday.