Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Baillie of Walstoun
v.
- Scot, Spouse to Mr John Muirhead

Date: 15 June 1669

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Mr Henry Scot, father to Muirhead's wife, being debtor, by his bond, to Walstoun in the sum of 500 merks, he did thereupon pursue his daughter, as representing her father, upon this passive title,—That he had acquired some lands to himself and daughter in fee, with power to contract debt, dispone or grant wadsets or tacks during his lifetime.

It was alleged, That the said lands were so purchased and provided to the defender before the contracting of Walstoun's debt; and so could give no ground for a passive title, she not being successor post contractum debitum.

The Lords, notwithstanding, did sustain the summons; not to make her personally liable, as representing her father by that passive title, but only in so far as she had a real right, affected as said is, and had made benefit thereby; and, therefore, ordained the pursuer to prove that the worth of the lands and rents intromitted with did exceed this sum contained in the bond; and declared, that the counting for the bygone annualrents, and offering to dispone the lands in favours of the pursuer, she should be liberated; otherwise she should be liable in solidurn to creditors. This was done to obviate fraud and circumvention by such conveyances made of purpose to prejudge lawful creditors.

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