The Debt must be anterior to the Disposition. - What understood to be an Anterior Debt.
Earl of Kinghorn v. The Laird of Udney
Date: 14 January 1668 Case No. No 129.
A son as lucrative successor post contractum debitum, was found obliged to enter heir to his father the wadsetter, in order to resign in favour of the reverser, because there was an obligation in the wadset to resign upon payment, which was before the son's disposition, though the order of redemption and repayment of the wadset sum to the father was after it.
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The Earl of Kinghorn did wadset to the deceast Laird of Udney the barony of Balhaves, and the sum due upon the wadset being paid to Udney, he did by his letter to the said Earl, promise a renunciation of the said wadset to be granted by him. The Earl of Kinghorn as heir to his father, having pursued the now Laird of Udney as representing his father upon the passive titles, and especially upon that, as successor titulo lucrativo, in so far as he was infeft in the lands condescended upon acquired by his father to himself in liferent, and to the defender in fee, with power to the father or his assignee to redeem the same upon payment of three pounds, and to set, wadset, and dispone without his consent; it was alleged, the sons right was prior to the said letter, and that the father did not make use of the said power. It was replied, That the wadset was prior to the defender's right yet, this right being qualified (as said is) the father might have contracted debts, and granted obligements after the said right, and the defender would be liable to the same, seeing the lands and the father's interest in the same being upon the matter a fee and power to redeem and dispone, might have been comprised for his debt contracted after the said right.
There being two questions in the case, viz. Whether the defender be liable as successor titulo lucrativo, if it should be found that the wadset was anterior to the son's right? 2dly, If the obligement shall be found to be after the defender's right, whether he would be notwithstanding successor titulo lucrativo, in respect of the quality and condition foresaid of the said right;
The Lords repelled the allegeance, and found the defender would be liable as successor, the pursuer proving that the wadset was anterior: As to the second question, The Lords thought it not necessary to decide, being of very great consequence, and deserving hearing in præsentia, seeing it was notour that the wadset was before the defender's right; yet we inclined for the most part to think, that when such rights are granted or purchased by parents to their apparent heirs, they should be liable to all the debts due and contracted thereafter, at least secundum vires et in quantum lucrantur. And beside the above-mentioned reasons, these may be urged, 1mo, The father having by such a reservation, not only a reversion, but in effect a right of property, in so far as he has power to dispone and wadset as if he were fiar, if he should discharge the said reservation, his discharge would infer against his son the passive title of successor titulo lucrativo, having gotten thereby an absolute and irredeemable right which he had not before; and therefore, he not using the power competent to him by the said reservation, being equivalent as if he had discharged the same, ought to operate the same effect. 2do, Such a right is in effect præceptio hæreditatis cum effectu only the time of the father's decease, seeing before that time it is in his power to evacuate the same; and therefore the time of the father's decease is to be considered so as the son cannot be said to have right or to succeed effectually before that time, and so ought likewise to be liable to the debts contracted at any time before his father's decease.
Fol. Dic. v. 2. p. 37. Dirleton, No 130. p. 53.*** Stair reports this case:
1668. January 15. The Earl of Kinghorn pursues the Laird of Udney, as representing his father, to denude himself of a wadset right, granted by the late Earl to the defender's father, conform to the defunct's missive letter, acknowledging the receipt of the sums of the wadset, and obliging himself, all written with his own hand; and craved that the defender might enter and infeft himself in the wadset, and resign in favours of the pursuer, that the lands might be purged thereof; and insisted against the defender, 1mo, as lawfully charged to enter heir, who offered to renounce to be heir. The pursuer answered, He would not suffer him to renounce, because he offered him to prove that he was lucrative successor by the disposition of the lands of Udney, whereunto there is an express reservation in favours of his father, to dispone, wadset, and grant tacks, and therefore any deed done by his father, behoved to affect him, at least the fee of the estate; so that, albeit this letter be posterior to the disposition of the estate it must burden the same, and the defender quoad valorem. 2do, The letter produced, acknowledges a wadset, and payment made, and it is offered to be proven, that the letter was anterior to the disposition of Udney; so that by the receipt of the wadset sums, the defunct was (by the nature, and tenor of the rights of wadset) obliged to resign in favour of the pursuer, and therefore the defender succeeding to him by this disposition, after that obligement to denude himself upon payment, is obliged, as successor titulo lucrativo post contractum debitum, to denude himself; and that the wadset was prior to the disposition of Udney, was offered to be proven. The defender answered, That the provisions in his infeftment could never affect him nor the estate, because there was nothing in the provision, that the estate should be liable to the debts contracted by the defunct thereafter, but only that he might dispone, or wadset, or redeem for an angel; and it cannot be subsumed, that the letter produced doth import any of these, but at most a personal obligement. 2do, Albeit it were notour, that there had been such a wadset before the defender's disposition of his proper estate, yet it behoved to be also instructed, that it was paid before that disposition; but his father's missive after his disposition, could never instruct that it was paid, or paid before, and yet the defender offered to renounce all right he had to the wadset lands, or to suffer a certification and improbation to pass against the same, seeing they are not extant or produced; or to consent that the Lords would declare upon the letter, that the wadset thereby was redeemed and extinct; which last the pursuer would have accepted, providing the defender would give a bond of warrandice for his father's deed and his own, which the defender refused.
The Lords proceeded to determine the point in jure; and as to that point anent the provision in the defender's infeftment, some were of opinion, that any debt contracted by the father would affect the estate, others thought not, there being no provision to contract debt, but to wadset or dispone, which was not done; and all agreed, that the case being new, and now very frequent, required a more accurate debate; but the Lords found that the defender's father, having by his letter acknowledged the wadset, and the payment thereof, to which wadset the defender had no right, that any grant of redemption by the father (after his disposition to his son) was probative against the son, and that the letter being proven holograph, did instruct the wadset to be paid; and therefore found it relevant to the pursuer, to prove that the wadset was before the defender's disposition, and that it did import a conditional obligement, that the father should resign upon payment, and that the son's disposition being after the wadset, he was lucrative successor, after that obligation contracted by the wadset.
