Behaviour not inferred from a second son selling land belonging to his father, tho' his eldest brother was an idiot declared, and he was his curator, and had got the price, and his elder brother died before the commencement of the process.
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In an action pursued by Irvine contra L. Monymusk, who was convened to pay a debt owing by his father, as behaving himself as heir to him; in this manner qualified, viz. in so far as, the pursuer offered to prove, that Monymusk had sold a tenement of land since the decease of his father, in the which land his father had died last infeft and seised; which qualification was repelled, in respect of this exception proponed, viz. that the defender, the time when he sold this land, had then an elder brother living, so that, per rerum naturam, he could not then have been heir to his father, and so that deed could not make him to be heir, there being another then living who would have been heir. This exception was admitted to elide the said qualification, notwithstanding it was replied, That the elder brother was an idiot declared, and that the defender was his curator; and that he had succeeded to him, and that he was now deceased, so that the appearance of that succession by the elder brother had evanished; and also, that it was answered, That the defender had received the price of the land sold by him, and had the same yet in his hands; which all was repelled, and the exception sustained; for the Lords thought, that that land sold by the defender might yet be sought to be adjudged to the pursuer for satisfying of the defunct's debt libelled, notwithstanding of the alienation thereof by the defender, seeing the defunct died infeft therein, and the defender has qualified no right in his person thereto iunde
Act. Baird.Alt. LermonthClerk, Hay.
Fol. Dic. v. 2. p. 26. Durie, p. 252.
