The Debt must be anterior to the Disposition. - What understood to be an Anterior Debt.
Ogilvie v. Ld Mensir
Date: 14 January 1634 Case No. No 127.
A decree of violent profits against a father, after the disposition by him to his eldest son, was drawn back to a decree of removing, which was before the disposition, in order to be the foundation of a passive title; because the decree of violent profits was a consequence of the other.
Click here to view a pdf copy of this documet : PDF Copy
Sir George Ogilvie of Carnossie, as executor dative ad omissa confirmed to his father, sought a decreet of violent profits obtained by his father against umquhile Alexander Fraser of Mensir, to be transferred in himself active as executor foresaid, and passive in Alexander Fraser, son to the said umquhile Alexander, to whom he was successor titulo lucrativo in the said lands of Mensir. Alleged, No transferring against the defender as successor, &c. because offered to be proven, that if any way he succeeded to the said lands of Mensir, it was by virtue of his contract of marriage, whereby his father was bound to infeft him in the same; which contract was long before the decreet of violence, and so he cannot be convened as successor titulo lucrativo post contractum debitum, seeing the decreet of violence is the only ground whereupon he is pursued. Replied, That ought to be repelled, except he would allege that the contract was before the decreet of removing and warning, whereupon the decreet of violence followed, and to which warning and decreet of removing following on it, the said decreet of violence ought to be drawn back; for the defender was constituted debtor by the said decreet of removing. Duplied, The decreet of violence is the only ground that makes the defender debtor to the pursuer, because it liquidates the decreet of removing. The Lords would not sustain the allegeance as it was proponed, except he would say as in the reply.
Fol. Dic. v. 2. p. 37. Spottiswood, (Successors and Succession), p. 315.*** Auchinleck reports this case:
The Laird of Carnossie pursued Alexander Fraser, as successor to umquhile Alexander Fraser of Mensir his father titulo lucrativo, for making payment to him of the violent profits contained in a decreet obtained by Carnossie's father against the defender's father. It was excepted by Alexander Fraser, that he cannot be convened as successor to his father in the land of Mensir, because he was infeft by his father therein upon his contract of marriage, which contract was made before any decreet of violent profits was obtained. To which it was replied, That the exception ought to be repelled, except it were alleged, that the contract of marriage was before the decreet of removing, whereupon the decreet of violence followed; for by the decreet of removing, his father was constituted debtor, and the decreet of violence was only a liquidation of the debt which depended upon the decreet of removing. Which reply the Lords found relevant.
