A son cannot be pursued upon the passive title of behaving as heir, by intromitting with the heirship moveables, where the father ceased to be baro, by having all his lands comprised, and the legal expired before his death. See No 15. p. 5392.
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One Straton pursuing Alexander Chirnside, son to umquhile L. Eastnisbet, for payment of 500 merks addebted to his father, as behaving himself as heir to him, by intromission with his heirship goods, or as successor to him titulo lucrativo post contractum debitum, in so far as he was infeft in his father's lands after the date of this bond libelled, granted to the pursuer; upon the which two alternatives, the parties being heard to dispute, the Lords found the first purged, and that he could not be subject to pay the debt libelled, as behaving himself as heir, by intromisison with his father's heirship goods, seeing it was alleged, that his father's whole lands were comprised from himself by his creditors, and the legal reversion expired before his decease, whereby he ceased to be baro, and consequently could not have heirship, by intromission wherewith any could be convened as heir: Likeas it was alleged, that he died at the horn, and his gift of escheat was gifted and declared, whereby the donatar would have right to all the moveable heirship; which two exceptions were found relevant to purge that first alternative; and for purging of the other, where he was convened as successor by the foresaid infeftment granted to him, he alleged, that that infeftment was reduced in foro contentiose, by a creditor to his father, which creditor had comprised the lands. And it being replied, that that reduction cannot make the defender to cease to be successor to his father, in so far as, since the said sentence of reduction, he had received great sums of money to ratify and approve the said decreet; and seeing he had gotten so great sums, quocunque nomine the same were given, yet in effect and in truth the same being given to him, who was apparent heir of the debtor, and for no other cause, but under the name of an act composed and accorded to, for the purpose to defraud the debtor, albeit it was truly given to renounce all his right, and to ratify the compriser's heritable right, therefore he behoved to be reputed successor.———The Lords found this allegeance also relevant to purge the alternative, and in respect thereof, that he could not be convened as successor, notwithstanding of the reply, which was not respected, but was repelled; for in effect what money was alleged given to the defender, to ratify the decreet of reduction of his right, was in effect received and delivered, that he might not be reputed successor, likeas if he had renounced to be heir, and had received money to ratify that renunciation, he could not be found to be heir thereby; and the Lords found, That if the creditor pursuer could qualify any prejudice, which he could sustain by the defender's ratifying of the decreet reductive, and that there was any ground subsisting in his person, whereby his heritable right might be sustained, and the decreet reductive taken away, from the which he is debarred by the defender's ratification of the sentence reductive, eo casu, the Lords would consider thereof as a reason, which might make the defender liable to the creditor; but if that could not be shown, (as it was not shown by the pursuer) then the right competent to the defender is yet standing to the fore, untaken away, and may be sought for and claimed by the creditor, after what legal manner he thought most expedient, whereof the Lords thought that in reason he ought not to be prejudged. See Passive Title.
