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.
Edward Edgar v. Colvil
Date: 2 December 1665 Case No. No 111.
Lucrative succession inferred by an assignation of an heritable bond by a father to his eldest son who would have succeeded him as heir therein.
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Edward Edgar pursues ——— Colvil, successor lucrative to his father, Mr Alexander Colvil, in so far as he accepted an assignation of an heritable bond, unto which bond he would have succeeded as heir. It was answered, That this passive title was never extended to bonds of provision granted by a father to his eldest son; and if in security and satisfaction of such a bond of provision, an assignation of a debt due to the father and his heirs were granted, it could not infer an universal title to make the accepter liable to his predecessor's whole debt, so neither can an assignation to a bond, which is no more in effect, and such odious passive titles are not to be extended, but the pursuer may reduce upon the act of Parliament 1621, or at the farthest, may crave by this process the simple avail of what the defender hath intromitted with by virtue of the assignation.
The Lords found the condescendence relevant, as being præceptio hæreditatis; and as an assignation to a tack or a small annualrent, hath been found sufficient, so there is like or more reason for assignations to heritable bonds, which may be more easily conveyed away from creditors; but they found it not alike as to bonds of provision whereby the father became debtor, and in satisfaction and security whereof he might assign, and would only import single payment, but not an universal passive title.
Fol. Dic. v. 2. p. 36. Stair, v. 1. p. 319.*** Newbyth reports this case:
Edward Edgar being a creditor to umquhile Mr Alexander Colvil of Blair in the sum of 3000 merks, pursues the relict as vitious intromissatrix with the defunct's goods and gear, and his bairns upon the passive titles alternative libelled, and insisted upon that passive title against the apparent heir as successor titulo lucrativo post contractum debitum by his acceptation of rights, not only of lands, but of heritable bonds and sums of money thereby due, which ought to infer that passive title against him who is alioqui successurus. The Lords found a disposition or assignation to be an heritable debt granted by the father to the son, sufficient to make the son liable as successor titulo lucrativo post contractum debitum. and so to make him liable for all his father's debts; notwithstanding it was alleged, That the said passive title can only be inferred from the acceptation of such rights whereupon infeftment had followed, but not for any other rights whereupon there was no infeftment.
