Any colourable title of intromission found to elide the passive title.
Dalrymple of Waterhead v. L Closeburn.
Date: 28 June 1632 Case No. No 174.
Found in conformity with the above.
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Dalrymple of Waterhead pursues Closeburn as universal intromitter with his father's goods, to pay his father's debts, who for the particulars condescended on by him, alleged the same to have been delivered by his father to the defender's wife, two years before his father's decease, who by virtue thereof was in possession before his father's death; and the pursuer replying, upon the father's retention of the same continually in his possession, until the time of his decease, notwithstanding of the alleged disposition or gifting, which behoved to be reputed simulate betwixt father and son, and the son's wife, and to prejudge creditors; and the excipient duplying, That no retention of possession could be alleged, to prejudge the anterior delivery made by the father, and to bring on all his father's debts on him, seeing the defender and his wife, after the foresaid delivery, became in actual possession of the same whole goods in the father's lifetime, who two years before he died, had neither estate nor means, whereof he might be reputed possessor, but was all this time sick and infirm, and lay bedfast, and remained in house with his son the defender, who entertained him in his family, the father neither having family nor servants, whereas the family was sustained upon the defender's charges, and he only paid the hires and fees of the servants, the father having no means to do the same, seeing his whole estate was evicted and apprised from him by Bryce Sempill; and the pursuer triplying, That the father retained the possession, and entertained the family, and paid the servant's fees, and that the son, who had nothing, remained in the house with his father; likeas the father, during all the days of his lifetime, continued still in possession of his lands and living, notwithstanding of the said comprising;—the exception and duply was repelled, in respect of this reply and triply, which was sustained and admitted to the pursuer's probation; and, upon the 3d of July 1632, the defender alleging, That the gift of his father's escheat was disponed to—Kirkpatrick, who had obtained thereupon both general and special declarator, who made the right thereof to the defender, by virtue whereof he intromitted, and so he could not be convened as universal intromitter with his father's goods; and the pursuer replying upon the father's retention of his goods all his lifetime, and that the defender after his decease intromitted therewith;—the reply was admitted, and the exception repelled.
July 4.—In the cause of Dalrymple of Waterhead, mentioned June 28 1632, it being alleged, That the annualrent of one of the debts, for which the defender was convened, was paid, which he offered to prove by witnesses, and which he alleged was probable by witnesses, seeing the quantity of the said yearly annualrent was but the second part of an hundred merks, which was only the pursuer's part for the whole annualrent, being only an hundred merks yearly, the pursuer had only right to the second part yearly, which was within the sum which was probable by witnesses;—the Lords found, that seeing this annualrent was constituted by writ, and that the party was obliged by writ to pay the same, albeit the quantity yearly belonging to the pursuer was within an hundred merks, and that it was alleged, that it was yearly paid, whereas there were many years pursued for; that therefore the payment could not he proved by witnesses, but only by writ, or oath of party, and no otherways.
Clerk, Hay.
Fol. Dic. v. 2. p. 43. Darie, p. 637. & 639.
