Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. VI.
What is to be considered such a separate Estate as will bar Reduction of a Gratuitous Alienation.
Lady Greenhead v. Lord Lourie
Date: 10 February 1665 Case No. No 56.
A debtor, not bankrupt, ha d granted an additional jointure to his wife, formerly provided for. Contended for the lady, in a competition with an appriser, that the reversion of the granter's estate was sufficient, altho' burdened with the additional jointure. The appriser preferred.
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The Lady Craig, and the Laird of Greenhead her second husband, pursues the tenants of Craig, wherein the is infeft, for mails and duties. In which process, my Lord Lourie compears for his interest, and alleges, That he having apprised the estate of Craig, and being infeft, thereupon hath raised reduction of the lady's infeftment, on this reason, that a part of his sums being anterior to the lady's infeftment, who was competently provided, by her contract of marriage, in thirty chalder of victual; and this additional infeftment of fifty chalder of victual, being betwixt most conjunct persons, husband and wife, in so far as it is posterior to the pursuer's lawful debt, ought to be reduced upon the act of Parliament 1621.—The pursuer answered, the reason ought to be repelled, 1mo, Because the act of Parliament being only against gratuitous dispositions made by bankrupts, in prejudice of their lawful creditors, is not relevant, seeing Craig the disponer was not a bankrupt. 2do, As he was not a bankrupt, so neither was he insolvendo; because the reversion of his estate is sufficient to pay his debt, albeit the same were effected with this additional jointure.—It was answered for the defender, That albeit the title and narrative of the act be against bankrupts, yet the statutory part thereof is against all gratuitous dispositions by conjunct persons; so that the defender needs not allege, that either the disponer was bankrupt, or insolvendo, but that the lady's infeftment is betwixt conjunct persons, without an onerous cause.—The pursuer answered, That the disponer was neither bankrupt nor insolvendo; and the defender can have no interest, unless there were fraud or prejudice, which the defender cannot allege; because the pursuer is content that the defender have access by his apprising to the jointure lands, in so far as will satisfy his annualrents; and by the act betwixt debtor and creditor, the Lords are impowered to restrict apprisings to their annualrent; and so he can pretend no prejudice, providing he assign the lady to his apprising, in so far as he satisfys his annualrent out of her additional jointure.
The Lords found the answer to the reduction relevant, upon purging of the appriser's prejudice, not only by admitting him to have access to the apprised lands upon assignation, as said is, during the legal, but with declaration, that if the lady redeemed not within the legal, the lands should be irredeemable, and the lady totally excluded.
