Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. V.
Gratuitous Alienations by persons solvent at the time.
La Borthwick v. Goldilands
Date: 5 March 1629 Case No. No 44.
Gratuitous alienations not reducible upon the act 1621, if the debtor became not thereby insolvent.
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In a removing, a tack set by the umquhile Lord Borthwick, after the setting whereof, the setter's right was reduced at the instance of the Lord Newbottle, who had acquired a more valid right than the setter had, upon a clause irritant contained in the setter's infeftment; and in the said reduction, the tack being also reduced per expressum; this reducer having thereafter obliged himself to dispone the lands in favours of the son of the setter of the tack, for a sum of money agreed to be paid therefor, which son was served heir to his said father, who was setter of the said tack; after which obligation the said reducer having given infeftment to the Lord Borthwick's son, who was heir to the granter of the tack, and to his wife in conjunct-fee, and to the heirs to be begotten betwixt them, which failing, to the heirs of the husband after the husband's decease; the lady seeking removing upon the said conjunct-fee infeftment, and Goldilands defending himself with the said tack, and the relict opponing the reduction foresaid, and the defender duplying upon the superveniency of the reducer's right in the person of her husband, who was heir to the setter, and whereby his tack convaleseed, and that the lady's conjunct-fee right slowed from her husband, whose supervenient right by the tacksman's right revived, and the Lady could not quarrel the same upon that right given to her by her husband, who was obliged to warrand his father's deed: The Lords found the tack, being reduced as said is, could not defend against this removing pursued by the lady, and that the bond made by the reducer to dispone the lands to him who was heir, and his being heir to the setter of the tack, made not the tack to convalesce before the heir was infeft in the lands, for there was found no superveniency before there was a real right established in the person of him, who was heir to the setter, and that the bond to give a right made no superveniency, nor yet his being heir, except also he had been infeft, and also heir, and that his being heir without infeftment made not the right to convalesce, but might furnish personal ground of warrandice against him as heir, and the real right being made by the reducer to the husband and his wife in conjunct-fee at one time, and in one writ; it was found that this was not a donation flowing from the husband to his wife, albeit the bond was granted of before, as said is, to the husband alone, not mentioning the wife; and albeit the husband paid the sum, for the which the disposition was made and so albeit the right superveened to the husband, whereby the tack revived, and might have defended the tacksman against the Lo. Borthwick's self, so long as he lived, yet he being dead, the tack could not convalesce against the relict, who, eodem tempore, acquired with him the real right, for her lifetime, from the reducer, which was hot esteemed to have proceeded from her husband, as said is, but from a third person to her. In this process it was found, that a disposition, albeit made without cause onerous by the debtor, after he was debtor, to his preceding lawful creditors, could not be found as coming under the act of dyvory, except the debtor, who disponed, had been then dyvor; for he not being bankrupt then, the prior creditor could not, upon that act, then quarrel the posterior right, made etiam sine causa onerosa: It was also found, that payment of taxation for the lands by the tacksman defender, made at command of the pursuer liable for the taxation, after the warning which the defender alleged, was also sufficient, as if he had received payment of the tack-duty, after the warning, was not relevant to infer absolvitor from that warning, except that the command had been given to him to pay it, as tacksman, or to be paid out of the duty of his tack, which was so found, and the said exception repelled, albeit the defender alleged, that he was not the pursuer's debtor, but in the duty of the tack, and he was not obliged to pay taxation for her, or to relieve her thereof neither could the command given by her have any respect, but to the tack and duty thereof, he not being otherwise debtor, which was repelled.——See Husband and Wife. See Implied Discharge.
Act. Nicolson & Belshes.Alt. Advocotus Cunningham.Clerk, Hay.
Fol. Dic. v. 1. p. 68. Durie, p. 432.
