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.
Laird Garthland v. Sir James Ker
Date: 6 March 1632 Case No. No 45.
Found in conformity with the above.
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The Lord Jedburgh having bound himself to dispone an annualrent out of his land of to the Laird of Garthland's son, oye to the Lord Jedburgh, redeemable upon twelve thousand merks, and accordingly having infeft him, and there being then a back-tack set to the Lord Jedburgh of the lands, for the yearly duty of twelve hundred and thirty merks; upon this right Garthland having intented action of declarator, as is mentioned betwixt these parties, Feb. 26. 1631, (Durie, p. 575. voce Legal Diligence), Sir James Ker compearing, alleged this right was a right made by a conjunct person, viz. the goodsir to the oye, without a cause onerous, but only for love and favour, which ought not to be found good and lawful against him, who was a lawful creditor to the Master of Jedburgh, to whom the granter of this infeftment is father and retoured heir; and who is obliged expressly to pay all his son's debts, for which this excipient is bound, conform to a contract betwixt them; and for relief whereof he is infeft before the pursuer's infeftment, albeit after the bond granted to the pursuer; and so that his right being for causes onerous, and the pursuer's ex titulo lucrativo, he ought to be preferred, specially, seeing the same is made to his own oye, whose mother is one of his appearand heirs, he having no other bairns but her and her sisters; and so being that person who has acquired that right, post contractum debitum, and which therefore will make her liable to the creditor if the goodsir were dead, so it ought now to have no force against the creditor's right; moreover, he alleged that this was an usurary right, and fell under the act of Parliament 1597; which prohibits to take more than ten for each hundred; for there is a back-tack set for 1230 merks, which is thirty merks more than the ordinary annualrent of 12,000 merks. These allegeances were both repelled, and the pursuer's infeftment sustained, albeit it had been a mere donation, depending upon a bond prior to the excipients infeftment, seeing it was never alleged, that the granter of the infeftment, the time of the making thereof, or since, was become bankrupt, and not solvendo; neither had the excipient done diligence against him, to discuss him for his debt; and so not being bankrupt, but being able to pay all his debts in lands and goods, he might lawfully ex causa simplicis donationis effectually grant this infeftment, albeit he was then debtor to his creditors; and the act of Parliament 1597, anent usury, was not found to militate in this case, which was not of borrowing and lending of money, wherein the act prohibits to take more than ten for the hundred, and extends no ways to this case controverted, or the like, which concerns a free donation, where the parties may contract to make the lands redeemable, which is gifted, upon more or less sums, as they agree together, than as effeirs to the duty of the land, contained in the back-tack; and the overplus also being but thirty merks, and so being of so mean a quantity, could not make the whole infeftment null. See Poinding. See Usury.
Fol. Dic. v. 1. p. 68 Durie, p. 626.Lord Kerse mentions the same case thus:
Found that the statute 1621, against bankrupts, militates not against donations, except it were known that the party is bankrupt or not solvent, and has not so much land, as to relieve the creditor.
