Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due to CAUTIONERS, FACTORS, MANDATARS, TUTORS, &c. Subject_3 As a Recompence for advancing their own Money upon their Constiuent's Account.
L Moriston v. L Frendraught.
Date: 10 July 1628 Case No. No 60.
The act of sederunt 1590, was extended against the executors and representatives of the principal debtor.
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In an action, Moriston contra Frendraught, as heir to his father; which father was intromitter with the defender's goodsir his whole moveable goods and gear, and which goodsir was bound to pay 500 merks, and Moriston's father, to whom he was heir, was cautioner for the said goodsir, and the said goodsir obliged for his relief, the bond being heritable, and consequently the defender being conveened, as representing his goodsir in manner foresaid, viz. by being heir to his own father, and his father being universal intromitter with his goodsir's gear, immediately after his decease, for re-payment to Moriston, who was heir to the cautioner, of the said sum, with the annualrent thereof, continually since his father paid the same, and by and while he were re-paid of the principal sum.——The Lords found, That the party being conveened, super hoc medio, as universal intromitter by the foresaid progress to the goodsir, who was debtor, was subject to pay the annualrents, ay and while the principal Sum were re-paid, and sustained this action against the universal intromitter; albeit the defender alleged, That neither an executor to a defunct, nor an intromitter, could be conveened for any more than that which was addebted by the defunct at the time of his decease; and no action can be granted against them for any annualrent, which should run for terms after the debtor's death; which annualrent running thereafter, was only due to be sought from the heir of a defunct, and not from his executor or intromitter with his goods; for it is the creditor's own fault, who, after the decease of his debtor, seeks not his debt, which being timeously sought, immediately after the defunct's decease, either will force the executor or intromitter to pay the just Sum, owing by the debtor at his decease; or if they do not, then, for their own cessation, they may be conveened for the annualrents thereafter runing; but if the creditor ly off, and seek not the executor or intromitter many years thereafter, he cannot claim the annualrents for terms after the debtor's decease from them, but should seek the same from the heir. This allegeance was repelled, and the action sustained for all the annualrents since the defunct's decease, from the time of the payment made by the cautioner, unto the term of payment, to be made to him against the universal intromitter, who intromitting sine titulo, behoved to be esteemed a vicious intromitter, and so could not have the benefit of an inventar, which is competent to an executor: And in this process, as in all the like cases, pursued against parties as universal intromitters, the Lords are ay in use to find, That one conveened as universal intromitter, if he be proven to have any intromission with the defunct's goods, albeit he be not proven to have intromited with all, is liable to pay the debt for which he is conveened, if he cannot purge his intromission, before there be an executor confirmed to the defunct, who may have beneficium inventarii; for his vicious intromission produces that effect; and this is ordinarly observed, albeit before the commissaries it be not so, where more being proven to be intromitters, every one is subject pro parte for the debt, and not one for all; likeas the Lords thought that an executor, (albeit that was not the case now controverted,) would be subject in the like, if the defunct's goods would extend to so much, and were not otherways exhausted; for the Lords thought, That a creditor could not be prejudged of that annualrent, whereof he had lawfully provided himself by his heritable security, if his debtor should want an heir, and have executors or intromitters with his goods; as was in the same case, where none was heir to the goodsir, and that the same person, who in law should be his heir, was intromitter; neither was there any testament of his given up, or executors confirmed to him, so that the pursuit was sustained, as said is; and the Lords found, That the defender might yet give up a testament, and the debt libelled being satisfied, he may obtain exoneration thereby against any other creditor of the defunct's, if there be no more gear than which would satisfy his debt, or if there were, by making of the same forthcoming to the other creditors; and where the defender alleged, That any intromission which his father had with his goodsir's goods, the same was only by buying of the same from the defender's father's own younger brother, who in law would have been the goodsir's executor; and which younger brother, after the father's decease, meddled with the whole goods, and the defender's father bought the same from him in an open rouping, in the house where the goodsir died, and paid the price therefor to him, which deed cannot make him intromitter. And further, he also alleged, That the goodsir's escheat was gifted to the L. Lesmoir, not only of all goods which he then had, (the same being gifted in anno 1599,) but also of all goods which he should acquire, during his remaining rebel; likeas he died rebel, and which gift of that tenor was also declared against the rebel in foro contentiosissimo, conform to the which gift and declarator, the defender's father being then administrator to the defender, he being then an infant, intromitted with the saids goods as escheat-goods, in name of the defender, who was made assignee thereto by the L. Lesmoir, donatar thereto, as said is; so that his said intromission being by virtue of the said title, and in name, and to the behoof of the defender, assignee thereto, and to his son's use, the same cannot be burdenable to him. These allegeances were repelled, and the action sustained against the defender, as heir to his father, who was intromitter, in respect of this reply, viz. That the pursuer offered to prove, that the goodsir remained in possession of his whole goods, notwithstanding of the escheat and declarator, which was in anno 1599, to the time of his decease, which was in anno 1612, at the which time immediately after the goodsir's decease, the defender's father, who was his eldest son, intromitted therewith, and used the same at his pleasure; and the said gift and declarator, which was thirteen, years before the rebel's decease, cannot extend to the goods which were in his possession at the time of his said decease. This reply was sustained, for eleiding both the foresaids exceptions, which were repelled in respect thereof. (See Passive Title, Vicious Intromission.)
Act. Nicolson & Craig.Alt. Advocatus & Oliphant.Clerk, Gibson.
Fol. Dic. v. 1. p. 43. Durie, p. 389.
