The disposition must flow from the father. - The disponee must be apparent heir in the subject. - Effect of the disponee dying before his father. - Disposition in trust for behoof of the apparent heir. - What must be the nature of the subject disponed to infer the passive title? - Acceptance of the disposition sufficient. - Bonds disponed to the heir will be presumed to have been heritable, in order to infer the passive title.
Nicol Harper v. Home of Plandergaist
Date: 14 January 1662 Case No. No 108.
One granted a disposition in trust for behoof of his apparent heir, which was afterwards conveyed to the heir. He was found liable only in valorem on the act 1621.
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Nicol Harper pursues Colonel John Home of Plandergaist, for payment of a debt of umquhile Home of Plandergaist his brother, and condescends, that the defender hath behaved himself as heir, at least successor lucrative to his brother, in so far as his brother disponed the lands of Plandergaist to William Home of Linthil, to the behoof of the defender, then his apparent heir, whereupon the defender is now in possession. The defender alleged, Non relevat, to infer this passive title, unless the disposition had been to the defender himself, or that he had thereupon been infeft; but a third party only being in the real right, and the defunct denuded before his death, albeit there was a personal obligement of trust in favours of the apparent heir, if that cannot make him lucrative successor, but the pursuer may reduce the same, if it was without cause onerous.
The Lords found the defence relevant to liberate the defender from this passive title, but would not put the pursuer to reduction, but admitted it by reply, ad hunc effectum, that the defender should be countable according to his intromission, and that the pursuer, as a lawful creditor, should be preferred upon his legal diligence to the said disposition.
But the question arising, whether the disposition, if in trust, was lucrative or not? and what to be lucrative imported, whether without any price, or within the half or third of the just price?
The Lords, before answer, ordained the disposition to be produced, and such adminicles, for instructing of the onerous cause, as the defender would make use of, reserving to themselves what the same should work.
