Vitious Intromission Purged by Confirmation, or by declarator of escheat.
Lo Johnston v. Johnston
Date: 17 July 1635 Case No. No 199.
A natural son, after intromitting with the defunct's moveables, obtained a gift of his escheat, and commenced declarator, upon which these was litiscontestation. This was found relevant to purge vitious intromission in a process at the instance of the creditors against him, he being in cursu diligentiæ.
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Lo. Johnston pursuing James Johnston, as universal intromitter with the goods and gear of umquhile Captain James Johnston, to pay to him a debt owing by the said Captain, who was the defender's natural father; and he excepting, that he was donatar to the escheat of the said Captain, whereupon he had action of general declarator depending, wherein litiscontestation is made, by virtue of which gift of escheat he had right to the defunct's goods and moveables, so that this intromission would not make him liable to any of the defunct's creditors; and the pursuer replying, That the defender, immediately after the defunct's decease, intromitted with all his whole goods, both within and without the houses, and used the same at his pleasure; which intromission cannot be purged by any subsequent right of his escheat, purchased by the defender ex post facto, and a long space after his intromission; for, by his preceding vitious meddling with the defunct's goods, he became liable to his creditors; and that deed cannot be purged, by purchasing of the gift of the escheat thereafter, which was not purchased while the space of after his said intromission, specially also seeing there is no declarator obtained upon the said gift hitherto; and the case of the creditors is most favourably to be considered against a donatar;—this exception upon the gift, albeit purchased after the intromission, and declarator depending thereon, wherein litiscontestation is made, albeit not yet decerned, was found relevant, and sustained to purge the preceding intromission, and to elide the action pursued against the defender, as universal intromitter.
Act. Stuart.Alt. Nicolson.Clerk, Scot.
Fol. Dic. v. 2. p. 46. Durie, p. 771.
