Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XV.
Of Alienations to singular Successors.
Doctor Hay v. Marjory Jamison
Date: 6 February 1672 Case No. No 114.
A reduction of a gratuitous right, upon the act 1621, is sustained against a singular successor in the right, where it bears in itself to be gratuitous. In that case the singular successor, although paying a price, cannot pretend to acquire bona fide.
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Doctor Hay pursues a reduction of a tack for two nineteen years granted by Patrick———, his debtor to Kinnaird his spouse, of the land of Attroch, for 20 pounds yearly, and payment of the teind; the narrative of the tack bears, that he had given a promise before, to grant the same, whereby the benefit of the tack was six chalders of victual yearly to her. The reason of reduction was upon the act of Parliament 1621. It was alleged for Marjory Jamison who now has right, That the said act of Parliament declares singular successors, acquiring bona fide, for onerous causes, and so not being partakers of the fraud, to be excepted from the act, and the right of this tack has come through several singular successors to this defender for onerous causes. The defender answered, That the exception of the act of Parliament hath no place where the first right doth not at least bear an onerous adequate cause; for if it be for love and favour, or without any cause, as this tack is, no singular successor can pretend to acquire it bona fide, or to be ignorant that the right they acquire is without a cause onerous.
Which the Lords found relevant, and reduced the tack.
Fol. Dic. v. 1. p. 74. Stair, v. 2. p. 63.*** Gosford reports the same case thus:
In the reduction, at Doctor Hay's instance against Marjory Jamison, he having insisted for reducing of two tacks set by Patrick Con of the lands of Artrachie, which the Doctor had comprised: To which Marjory had right by transaction from George Stewart, upon this reason, That the said tacks were first granted by Patrick Con of Artrachie, the common debtor, for 15 and 19 years after his decease, and that without any onerous cause, she having before a liferent tack of the same lands in lieu of her conjunct fee lands in her contract of marriage. It was answered, That albeit these tacks might be reduced upon that reason, if they had continued in the person of the wife, yet she having disponed the same for onerous causes before they were quarrelled, who bona fide had acquired the right thereto, they did not fall under the act of Parliament anent bankrupts, but on the contrary, by the said act, rights made to third parties by confident persons are declared valid as to them.
The Lords having considered the tacks, which did bear for no onerous cause at all, and that the acquirers could not but know, that being made to a wife, in so far as they exceeded the provisions in her contract of marriage, they were donatio inter virum et uxorem; they found that a singular successor, albeit he acquired a right for an onerous cause, was in no better condition, than if they had remained in the wife's person; and found a great difference betwixt the rights made for no onerous cause to a confident person, and those that did bear for causes onerous, as to singular successors who did acquire from them.
Gosford, MS. No 464. p. 241.
*** See Robertson against Brown, 11th July 1637, Duric, p. 850. voce Competition.
