Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. IV.
Gratuitous Alienations.
Kilgour v. Thomson
Date: 16 February 1628 Case No. No 39.
A party granted a gratuitous disposition of lands, while he was in entire credit, and no diligence had been done against him; yet having failed soon after, the alienation was reduced, at the instance of a creditor.
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In an action betwixt Kilgour and Thomson, mentioned 24th January 1628.† Thomson alleging, that he ought to be preferred to Kilgour who was infeft; because he alleged that the right made to Kilgour was acquired from Mr Alexander Linton heritor of the lands, who was debtor to Thomson before the disposition made by him to Kilgour; which disposition he alleged was made without an onerous cause, but ex titulo lucrativo, the disponer being since become bankrupt, and unable to satisfy his debt: This allegeance was found relevant; albeit Kilgour answered, that it was lawful to him to take a disposition of the land from Linton, debtor to the excipient, seeing at that time he was not bankrupt, and was not inhibit by Thomson, nor no diligence done by him against his debtor, which might make it unlawful to Kilgour to acquire and receive the land from: the said debtor, either by gift, or by buying. This reply was not respected, for the Lords found; that it was more reasonable and just, that the land given to Kilgour, if it was disponed without a cause onerous, or a preceding debt, or sums of money, should be rather furthcoming to the just and true creditor, for satisfying of his lawful debt, than that Kilgour should bruik the same ex titulo lucrativo, albeit the creditor had done no diligence against his debtor, at the time of the acquiring of Kilgour's right, seeing immediately thereafter the debtor became bankrupt, and so unable to pay this party his just debt.
