Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XI.
The Onerosity of Provisions in Favour of Children.
Johnstoun of Sheins v. Arnold
Date: 22 July 1668 Case No. No 77.
In a competition betwixt two apprisings, one of them upon a bond of provision, it was found relevant, so as to prefer the other led on an onerous debt, that the delivery of the bond of provision was posterior to the onerous debt.
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James Arnold having granted a bond of provision to his daughter Isobel, became afterwards debtor to Johnstoun of Sheins, who apprised Arnold's estate, in anno 1638, upon a debt of his own, and as assignee to another debt. Thereafter Isobel Arnold, on her bond of provision, apprises the same lands; Sheins comes in possession of the most part, and Isobel in a small part, till they both acquire the benefit of a possessory judgment, whereupon there are mutual reductions. Sheins' reason was, That his father's apprising was long prior to the defender's, and that the ground of the defender's apprising, was only a bond of provision by a father to his daughter, which could never exclude the father's creditors, especially if that debt was contracted before the bond of provision was granted, and while it remained in the father's custody, and so in his power to be reduced at his pleasure.—Isobel's reason of reduction was, That albeit Sheins' apprising was prior, yet there was no infeftment thereon in Sheins' person, bearing to be on an assignation to the apprising by Sheins to Collingtoun; but any infeftment produced is in Collingtoun's person, bearing to be on an assignation to the apprising by Sheins to Collingtoun; which assignation is not produced; and so Sheins' infeftment, flowing from Collingtoun, is null, because Collingtoun's right, from umquhile Sheins, is wanting, which is the mid-cuppling. 2do, Sheins' apprising being on two sums; the one whereof was to the behoof of a cautioner who had paid the debt, and taken the assignation in Sheins' name to his own behoof; which cautioner being conjunct cautioner with James Arnold, the common author, and having a clause of relief, neither he, nor Sheins intrusted by him, could justly or validly apprise Arnold the cautioner's lands for the whole sum, but behoved to deduct the other cautioner's part; and so the apprising is upon invalid grounds, and there by is null, and albeit prior to Isobel Arnold's apprising, yet she has the only valid apprising.—It was answered for Sheins, That the first reason was not competent to the pursuer, for it was jus tertii to her what progress Collingtoun had from umquhile Sheins, seeing she derives no right from him. 2do. This Collingtoun, by his right, granted to this Sheins, acknowledges that ab origine the infeftment in Collingtoun, his father's person, was to Sheins' behoof, which is a sufficient adminicle in place of the assignation: And to the second reason, albeit it were instructed, it could not annul the apprising in toto, but restrict it to the sum truly due, especially seeing that Sheins was content to declare his apprising redeemable, by payment of the sums truly resting, within such times as the Lords would appoint; and albeit the Lords are strict in the formalities of apprisings when they are expired, and carry the whole estate, though improportional, yet during the legal, they allow them in so far as they are due.
The Lords found Isobel Arnold's first reason competent and relevant to her, unless Collingtoun's assignation were produced, or the tenor of it proven; and found the second reason relevant, to restrict the apprising to the sum truly due; in respect that Sheins did of consent declare it yet redeemable for the true sums, But they found Sheins' allegeance, that the ground of Isobel Arnold's apprising was a bond of provision, posterior in date or delivery to Sheins' debt, relevant to prefer him as a conjunct creditor for his true debt, though the assignation should not be produced, a new one from Collingtoun being sufficient. See Jus Terth.
