Scottish Court of Session Decisions

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

Crawford
v.
Anderson, Provost of Glasgow

Date: 24 July 1669

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In a reduction of a disposition, made by one Fleming to Anderson, of his lands, upon the Act of Parliament 1621; Anderson confessed that his right was only in trust; and that, within half a year after his infeftment, he did give a back-bond, bearing the trust, and an obligement to dispone, he being satisfied of any debts due to himself; after which, he had paid several sums of money to Fleming's creditors, whereof he could get no relief but by making use of his right.

It was alleged for Crawford, That he had comprised Fleming's estate as a lawful creditor, and was publicly infeft thereupon long before any payment made by Anderson to Fleming's creditors, which was voluntary, and had done no diligence; and therefore his right, being in trust, as said is, no such payment could make the same onerous; seeing, if that were sustained, it would be a door to defraud lawful creditors, who had done diligence, and, by such contrivance, to prefer any other the common debtor pleases.

The Lords did sustain the reduction, notwithstanding of the answer, and found, That Anderson was in mala fide to pay any creditors, to whom he was not obliged after the pursuer's public infeftment; and that, notwithstanding that Anderson's right was before the contracting of debt, whereupon comprising was led; so that it did not fall under the Act of Parliament 1621; and the back-bond given thereafter being voluntary, and no diligence done against him to put him in mala fide to pay any creditor, it was against reason to take from him the estate without any allowance of those sums whereof he could get no relief: But, notwithstanding, the Lords reduced his right, as being upon trust, which he had declared by his back-bond; and, finding it to be a contrivance, would have no respect to any voluntary payment he had made.

This decision, though it was hard, as being the first of this nature, yet was done upon a just consideration to obviate fraud and contrivances to prejudge lawful creditors.

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