Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. III.
Alienations in favour of Conjunct and Confident Persons.
Mr Andrew Skeen v. Betson
Date: 17 January 1632 Case No. No 25.
A disposition to a son-in-law, where there had been no previous diligence, supported only in so far as proven to be onerous.
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One Betson being tenant to Mr Andrew Skeen, and having granted to him an obligation for some money, as the price of certain farms, which he was unable to pay to him; and having thereafter left his ground, the said Betson thereafter falling heir to a burgess of Burntisland, who had both moveable heirship, and tenements pertaining to him heritably in Burntisland; he dispones all his right, both of the lands and moveables, to his son-in-law, whereby he was unable to pay the said Mr Andrew Skeen's debt, having no other goods nor gear, but that which fell to him that way: And the said Mr Andrew having arrested the said heirship, in the hands of the relict of the said person, to whom he was become heir, and desiring the same to be made furthcoming to him for his said debt; and the other party assignee claiming the same, by virtue of his said disposition, which preceded the arrestment, which he alleged was lawful to give him right thereto, seeing the cedent was never bankrupt; neither had the said other creditor done any diligence, to recover payment from him, whereby he might not lawfully take the said disposition, albeit it had been granted to him ex donatione and without causes onerous; whereas the same bore to be for sums of money; for the maker was neither bankrupt, nor at the horn, nor ever charged to make payment, so that the act of dyvoury could not be obtruded conveniently in this case; and the other party obtruded competently the said act of dyvoury, which he alleged to militate for him against this party; seeing the disponer, albeit he was not at the horn, yet he, by making of the said disposition, was become in effect a bankrupt, for thereby he had denuded himself of all which he had; for he had neither goods nor gear whatsoever, but only that which he had fallen to as heir, and which fell under the said disposition, and which was made by him to his own son-in-law, and so inter conjunctas personas, and without any cause onerous; at least, if any cause onerous was, it was not equivalent to that which was disponed; and therefore it could not agree with conscience that he should bruik that which was disponed (except in so far as might proportion his debt, if any truly might be qualified) and that the other party should want all.——The Lords found, albeit the debtor was not rebel, nor yet that the creditor Mr Andrew Skeen had used any diligence against him before this disposition, yet seeing the disposition extended to all the goods he had, and that the other party, to whom the disposition was made, could not allege nor qualify that the said debtor was answerable in goods or lands to pay the other party's debt, beside the gear disponed, that they would only sustain the said disposition, to give the acquirer thereof preference pro tanto, in so far as he should shew the same to be acquired for a just and onerous cause; according whereto it was found, that he should be preferred to the other creditor, and not for any further; seeing in the overplus the Lords found, That the other creditor ought to be answered, and the said disposition ought not to prejudge him therein; seeing the same in the overplus was to be repute as a donation, or a deed done without competency of a just price, which in reason ought not to be permitted as lawfully done in prejudice of a lawful creditor, by the debtor, who was otherwise unable to pay his debt; in prejudice whereof he could not gift his goods in toto, and thereby become irresponsal in hurt of other creditors, albeit not doing diligence before that donation:—And the Lords found, the onerous cause for which the disposition foresaid was made, might be proven by the acquirer's own oath; which the Lords found enough to prove, seeing: the disposition itself proported to be made for sums of money. (See Proof.)
Act. Baird.Alt. Burnet.Clerk, Scott.
Fol. Dic. v. 1. p. 67. Durie, p. 611.
