Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. IV.
Gratuitous Alienations.
Lord Lourie v. Earl of Dundee
Date: 6 February 1663 Case No. No 40.
A gratuitous disposition, reserving the granter's life-rent, and a faculty to fell a part of the estate for payment of debt, was reduced; to the effect, that the creditor might proceed in diligence against the lands, as if the disposition had not been granted; and without regard to the faculty to sell.
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The Lord Lourie pursues a reduction of a disposition, made by Carnegy of Craig to the Earl of Dundee, as being posterior to the pursuer's debts, and in prejudice thereof, upon the act of Parliament 1621, against bankrupts; and, for instructing of the reason, repeats the disposition itself, being betwixt confident persons, cousins-german, and without cause onerous, in so far as it bears reservation of the disponer's and his Lady's liferent; and provision to be null, if Craig have heirs of his body, in whose favours Dundee is to denude himself, upon payment of his expence.—The defender alleged, That the libel is not relevant, 1mo, Because Craig is no bankrupt, nor any diligence done against him, before the disposition. 2do, He is not insolvent by the disposition, because there is reserved to him a power to sell as much of the land as is worth 80,0001. for debt, and so is not in fraudem creditorum; but the pursuer ought to pursue for that provision, either by apprising or personal action.
The Lords found the reason relevant and proven by the tenor of the disposition; and therefore reduced, to the effect, that the pursuer might affect the said lands with all legal diligence for his debt, as if the disposition had not been granted; for they thought, seeing by this disposition there remains no estate sufficient, ad paratam executionem, that there was no reason to put the pursuer to insist in that clause, to restrict himself thereby to a part of the land, but that he ought to have preference for his debt, upon his diligence, affecting the whole land.
