Scottish Court of Session Decisions

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

Barbara Home
v.
Andrew Bryson

Date: 5 January 1672

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In a reduction of a right and disposition of a tenement of land, made by the said Andrew's father to him, at the instance of the said Barbara, upon the Act of Parliament 1621, against dyvors and bankrupts, as being in defraud of the liferent provided to her in her contract of marriage; in which there was a conclusion to hear and see it found and declared,—That the price of the said tenement, which he had sold, might be declared liable for making up her liferent provided to her; the said Andrew having deponed upon the price of the said tenement, with this quality,—that, as he had received it, so he had paid the same to a creditor of his father's:—

At the advising of the oath it was alleged, That no respect ought to be had to that quality; because the disposition, being made by a father to his son, which being for no onerous cause, he could not dispose thereof, and apply the money received as the price to the satisfaction of any creditor who had done no diligence, he being but an interposed person, in prejudice of one who was both a prior and a privileged creditor by her contract of marriage; and if this were allowed, it were a compendious way to a debtor, or those intrusted by him, to prefer one creditor to another, as they pleased.

It was replied, That it is clear, by the Act of Parliament, that dispositions made by debtors themselves, far less by any getting right from them, albeit for no onerous cause, can be questioned, but where they are made to the prejudice of creditors who had done prior diligence by horning or otherwise.

The Lords did assoilyie from the reduction; and found, That the defender, having made no benefit, but paid a lawful creditor, who might have done diligence, could not be liable to the pursuer, who, upon her contract of marriage, had used no execution, notwithstanding, she, being in family with her husband, and not knowing his condition, was prejudged by this right made by a father to his second son of his first marriage; for, albeit he might be pursued ex capite fraudis, yet they found he could not be questioned by the Act of Parliament 1621, against deeds done by bankrupts.

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