Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XII.
The onerosity of Provisions made in contracts of marriage.
Mr John Watt v. Campbell of Kilpont
Date: 8 February 1671 Case No. No 91.
A father, at the time solvent, gave his son on his marriage L. 40,000 Scots. On the father's eventual bankruptcy, action sustained at the instance of a creditor against the son; the gratuity, although it did not render the father bankrupt, being considered to be exorbitant.
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Sir Archibald Campbell being debtor to Adam Watt in a sum of money, he did thereafter contract his son Mr Archibald in marriage with Thomas Moodie's daughter, and by the contract Thomas Moodie acknowledges the receipt of forty thousand pounds from Sir Archibald, and is obliged for twenty thousand merks of tocher, all to be employed for Mr Archibald in see; but Thomas Moodie's daughter dying, and leaving no children behind her, Thomas Moodie did restore the sums, and there is a discharge granted by Sir Archibald and his spouse, and Mr Archibald, bearing them to have received the sums, and to have discharged the same; whereupon Mr John Watt, as heir to Adam, pursues Mr Archibald to pay him the sum due to his father, upon this ground, that he having received forty thousand pounds of his father's means, after contracting of the debt, ought to make so much of it furthcoming as will pay the pursuer; which action was founded upon the act of Parliament 1621, whereby all deeds done by debtors in prejudice of their creditors, without a cause onerous, are declared null; and all parties that by virtue thereof intromit, are declared liable to restore to the creditors. It was answered for the defender, 1st, That the libel was not relevant, there being no part of the act of Parliament 1621 that incapacitates debtors to gift or dispone sums of money, or moveables, especially if the disponer at that time be not insolvent, but have a sufficient estate for satisfying his debt; and it is offered to be proven, that Sir Archibald had, at the time of this contract, a sufficient estate for all his debt, in the hands of the Earl of Argyle and Glenorchie; and albeit, by the superveening forefaulture, Argyle's debt be insufficient, it was a good debt the time of the contract, so that there can be no ground to make a child liable to restore a portion given by a father who was solvent. 2dly, Albeit the defender could be liable, if it were clear that he had the sum foresaid by his father yet remaining to the fore, yet if it had been lost or spent before the intenting of this cause, he or any subsequent estate acquired aliunde is not liable, ita est any thing he has is a wadset of forty thousand merks on Kilpont, and the two tochers he had, viz twenty thousand merks from Thomas Moodie, and ten thousand merks of legacy, and twelve thousand merks of tocher with Sir William Gray's daughter, was sufficient to acquire the right of Kilpont, without any thing from his father. 3dly, The discharge produced cannot instruet that Mr Archibald received the money, because it bears indefinitely that payment was made to Sir Archibald and his spouse, and to Mr Archibald, and all of them do discharge. The pursuer answered, That the libel was very relevant, for whatsoever might be alleged of bairns portions by a solvent father, yet this being so considerable a fortune provided to the only son, and apparent heir, if it did not make him liable to satisfy the father's debt pro tanto, it were a patent way to defraud all creditors and elude the act of Parliament, for the father might sell his estate, and provide the moneys in this manner; and as to the discharge, albeit it be indefinite, yet it must be presumed that Mr Archibald received the sums, because they belong to him in see by the contract of marriage.
The Lords found the libel relevant, and that the discharge produced did presume that Mr Archibald the fiar did receive the money, but seeing the probation was not express, but presumptive, they allowed Mr Archibald to condescend upon what evidences he could give, that the money or surety thereof was delivered to his father.
