Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Maxwell of Nether Pollock, v. Kirkconnell Maxwell
1671.
July5, 8, and
11.
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July 5.—Kirkconnell Maxwell being pursued by Maxwell of Nether Pollock upon the passive titles, for payment of a debt owing by his father, and specially on the title of gestion as heir, in so far as he intromitted with the mails and duties of his father's lands; alleged,—That intromission can never infer the passive title of behaviour, because he can ascribe it to a very specious title, viz. to a comprising led against his father, whereof he had acquired the right, and in virtue whereof he intromitted. Vide infra, June 1677, No. 575, [Kincaid against Gordon, June 1677.] Replied,—This comprising being come in the person of the apparent heir, whether it was led by a conjunct person or no, it must be presumed to have been in fraudem, and so will never save from a passive title. Duplied,—All that can be subsumed on that act of Parl. 1661, is, that it shall be leasum to any creditor compriser to redeem it from the apparent heir, upon payment of such sums as he truly depursed therefore; but it is inauditum and consonant to no law that an apparent heir intromitting with his predecessor's estate by virtue of a comprising, shall, upon that head, be exposed to all his predecessor's debts; but if they will insist to redeem in the terms of the act of Parliament, they should have an answer.
Halkerton would give them the Lords' answer on it.
Advocates' MS, No. 204, folio 102.
July 8.—In the foresaid cause of Kirkconnell Maxwell's, which vide supra, No. 204, the Lords found an apparent heir acquiring the right of a comprising led against his predecessor's estate to be no gestion; whereupon the pursuer offering to redeem the said comprising,—
To which it was answered, 1mo, That this being a comprising led before the act of Parliament, and the right thereof being acquired by him before the making of the said act, it can never fall under the compass thereof; for beside that no act should be extended ad præterita, but are made to rule in casibus futuris, the said act per expressum bears, that whatever apparent heir shall in any time thereafter acquire the right of such comprisings, &c. But, 2do, Esto it were competent, and after that act, yet it will never be competent hoc loco; but they must raise a declarator, wherein it may be found they have right to redeem the said comprising. 3tio, They cannot be heard, except they subsume in terminis of the act of Parliament that they are comprisers, seeing no others have right to redeem.
Replied to this last,—That though the act speaks of creditors comprisers; yet there being that same reason for all creditors, the Lords in equity may extend it; especially considering that the rubric or narrative of that part of the act speaks indistinctly of all creditors.
They were to have the Lords' answer on this last part.
Advocates' MS. No. 210, folio 103.
July 11.—In the case of Kirkconnells, at No. 210, taken to interlocutor, the Lords found, That albeit a personal creditor, who was not a second compriser, could not claim to redeem a prior comprising, the right whereof was now come in the person of the apparent heir, because he had no right to the reversion; yet, that he might offer him to prove, that either the apparent heir had paid no sums of money for that right, or, if he had, the right was now extinct, in so far as he intromitted with as much of the mails and duties of the apprised lands as paid him the sums truly debursed by him; or if there were any part of the said sums yet resting, the said personal creditor might have the liberty to purges the same by paying in the superplus, and so might clear the lands of that encumbrance to the effect he might attain to the mails and duties thereof himself; and this they found they would receive hoc loco, and that it needed not a declarator. Yea, some were of the mind, that if he should be found satisfied of the sums really paid him, upon a bill given in by a personal creditor, the Lords would decern him to assign over his right to the said creditor, seeing, in doing thereof, he has no prejudice. My Lord Halkerton also reported, that, (in the question of intromission by an apparent heir with the mails and duties of his father's lands, conform to a comprising whereof he has acquired the right, will infer behaviour yea or no,) the Lords found it would, if his father, notwithstanding of the said apprising, continued in the possession of his lands to his death, and if the appriser never attained the possession in his lifetime; sed de hoc multum dubito, nec æquitatem ejus capere possum; but I think the Lords rather meant it should be a behaviour, if the apparent heir meddled before the establishing a right in his person.
