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.
Margaret Home v. Mr Andrew Bryson
Date: 24 June 1670 Case No. No 78.
A son in familia, obtained a gratuitous disposition from his father; Thereafter he made voluntary payment to several of his father's creditors. The disposition found reducible, in so far as his step-mother might thereby be prejudiced in her rights by contract of marriage; although she had done no diligence, to put the son in mala fide to pay debts contracted after her liferent provision. Being in familia, he was presumed to know of her right.
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In a reduction of a disposition of lands, made by Andrew Bryson to Mr Andrew, his second son of the first marriage, at the instance of Margaret Home, his mother-in-law, upon the act of Parliament 1621, as being done in defraud of her liferent provided by her contract of marriage, it was alleged for the defender, That his right was for an onerous cause, and condescended upon several debts that he had paid for his father.——The Lords having considered the disposition, which did only bear, for love and favour, as likewise the condescendence, that many of the debts were after the disposition, so that his payment was voluntary; they did sustain the reason of reduction founded upon the pursuer's contract of marriage, which was prior thereto, notwithstanding that the defender did further allege, that the pursuer had done no diligence before his payment of other creditors; which the Lords did not respect specially seeing she being his father's wife, he could not but know she was provided to a liferent. But, albeit the case had not been singular upon that head, yet the most were of the judgment, that a son being in familia, and getting an estate for love and favour, he could not prefer one creditor to another, and make the disposition onerous thereby; which may be much disputed, seeing he was not put in mala fide by diligence; and so he might lawfully pay any Creditor he knew would prevail in a reduction of his right.
Fol. Dic. v. 1. p. 71. Gosford, MS. No 278. p. 119.
