How far the Disposition must be onerous, to elide the Passive Title.
Lyon of Muirask v. Laird of Elsick
Date: 17 June 1664 Case No. No 122.
A disposition of lands in an elder son's contract of marriage, found not to make him lucrative successor, the father having got the tocher, and the son being burdened with certain debts; but the son was found liable in quantum lucratus.
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Lyon of Muirask pursues the Laird of Elsick upon a debt of his father's, as successor titulo lucrativo. The defender alleged, Absolvitor; because any disposition he had from his father was in his contract of marriage, whereby 10,000 merks of tocher was received by his father, and 14,000 merks of debt more undertaken for his father, with the burden of his father's liferent. The pursuer answered, The allegeance ought to be repelled; because he offered him to prove, that the land disponed was then worth forty or fifty chalders of victual, so that the cause onerous was not the half of the value; and, therefore, as to the superplus, he was lucrative successor. The defender answered, That any onerous cause or price, though incompetent, was enough to purge this passive title; and albeit the pursuer might reduce the right, and make the lands liable, because the cause was not onerous and equivalent, yet he could not be personally liable in solidum for all the defunct's debts.
The Lords having seriously considered the business, after a former interlocutor the last session, assoilzing from the passive, title, but finding the lands redeemable by the pursuer, or any other creditor, for the sums paid out, did now find further, that the defender was liable for the superplus of the just price of the land, according to the ordinary rate the time of the disposition, and that the superplus, over and above what he paid or undertook, ought to bear annualrent, as being the price of land.
Fol. Dic. v. 2. p. 37. Stair, v. 1. p. 203.*** Gilmour reports this case:
1664. June 21.—There is an action pursued at the instance of John Lyon of Muiresk, against Bannerman of Elsick, as successor titulo lucrativo to his father; in the lands of Elsick and others, for payment of a debt owing by his father, before his right. It was alleged, That the right he had from his father was onerous, viz. his contract of marriage, by which, for 10,000 merks received by the father of his son's tocher, and for certain other burdens, wherewith his father had power to burden the lands, his father did dispone the estate to him. To which it was answered, That the tocher and burdens foresaid were not equivalent to the worth of the lands; so that, for the superplus, the defender was successor titulo lucrativo. It was replied, That the title being onerous, though there might be a superplus of the worth, that could not make him successor by a lucrative title; but all that it could work is, that the lands might be redeemable from the defender for the tocher paid, and other burdens truly undertaken, as was found in anno 1637 betwixt Wemyss of Lothacker and his father's creditors, No 120. p. 9790. at the least, that the lands should be really liable for the said superplus.
Which accordingly the Lords found; and parties being de novo heard, they adhered to their former interlocutor, with this addition, that the superplus foresaid, as the same might be estimated the time of the contract, should not only be liable to the creditors after count, but also for the annualrent thereof, after the intenting of the respective creditors their cause.
