Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lermont v. The Earl of Lauderdaill
1670, and
1671
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1670. June 29.—The Earl was pursued as donatar to the forefaulture of the Laird of Swinton, at the least, as intromitter with the mails and duties of his lands, to pay this debt, which was contained in the disposition of the estate to that laird of Swinton, in whose place the Earl is come; and so is debitum fundi et reale, and must affect the lands.
This pursuit was not sustained unless they would say the estate was burdened with that debt in the procuratory of resignation, and in the infeftment following thereupon.
1671. July 5.—The action whereof we have mentioned supra at the 45th No. Lermont against the Earl of Lauderdale, being again called, because they controverted about the scroll of the act: it was alleged that my Lord Lauderdale was liable to satisfy the said debt super hoc medio, that he being the King's donatar to the forfaulture of John Swinton of that ilk, he and the King must get the right prout optimum maximum erat, and as it stood in the said John's person: but ita est in the disposition made by Sir Alexander, (who was John's father,) in favours of John his son, he reserves in gremio juris a power to affect and burden the lands disponed with 52,000 merks in what manner he pleased; and thereafter having borrowed from the laird of Smeton, (in whose right Lermont is now come,) 14,000 merks, he declared it was his intention to exercise his power he had reserved to himself in the disposition he had made, and therefore willed the said sum should affect the lands, and burden his son, conform to the said disposition: and as the said John, if he had not been forfaulted, would never have been able to evade this debt, so neither can the King or his donatar, it being onus reale inhærens before the forfaulture, and therefore it must pass cum onere. And as to the facultas reserved by the father, it is real, and might have been comprised from him at a creditor's instance.
Answered,—That however the laird of Swinton might have been reached upon the said debt, yet my Lord, who is donatar to the forfaulture, and so a singular successor, can never be, unless infeftment had followed upon that bond of Smeton's, and it had become a real right.
They were to have the Lords' answer upon this.
Advocates' MS. No. 203, folio 102.
1671. July 12.—The case at No. 203, supra, being reported, the Lords found that in the disposition made by Sir Alexander Swinton to his son John, he reserved a faculty for burdening the estate by wadsets, or other infeftments, with the sum of 52,000 merks; and that this declaration, in a personal creditor's bond, That he willed this sum should be a part of the said sum reserved him, was not habilis modus of exercising his said power; and therefore assoilyied the King and the Earl of Lauderdale his donatar therefrom, as noways affecting them.
