How far the Disposition must be onerous, to elide the Passive Title.
Beatie v. Roxburgh
Date: 22 November 1671 Case No. No 123.
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Beatie pursues Roxburgh as successor lucrative to his father, by a disposition produced, bearing for love and favour, and other good causes, redeemable by the father for forty shillings Scots. The defender alleged, That whatever was the tenor of the disposition, yet the true cause thereof was onerous, being granted for sums belonging to the son aliunde, intromitted with by the father, equivalent to the worth of the land, which uses always to purge this passive title, quia debitor non præsumitur donare.
The Lords found the defender lucrative successor by this disposition, the reversion making it evident to be a pure donation, and not given for any other cause.
Stair, v. 2. p. 8.*** Gosford reports this case:
Roxburgh being pursued as successor titulo lucrativo to his father, in so far he had disponed to him a tenement, which did bear for love and favour, and wherein there was a reversion, bearing a power to redeem for payment of 20 shillings Scots, which tenement he yet possessed many years after his father's decease; it was alleged, That that disposition, albeit so conceived, could not make him successor titulo lucrativo, because he offered to instruct, that his father was debtor to him, by intromission with great sums of money left to him by his uncle on the mother's side, far exceeding the worth of the tenement, and the disposition being conceived in such terms as his father pleased, when he was minor, and in familia, it ought not to infer a passive title against him, which would make him liable to all his father's debts, he himself being a true creditor.——The Lords did find, that the disposition being conceived as said is, was a lucrative title, and made him liable to all his father's debts, which was very hard.
