Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Greerson of Capenoch
v.
The Apparent Heirs of John Crichton of Crawfordstoun

Date: 5 February 1673

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In a pursuit at Capenoch's instance against the daughters and apparent heirs of Crawfordstoun, for payment of the sum of five thousand merks due by the father, to which he was assigned;—It was alleged by the defenders, That the assignation was to the behoof of Brown of Inglistoun, who was heir of tailyie to Crawfordstoun; and, by the tailyie, was expressly obliged to relieve the defenders of all the father's debts; so that, he being heir of tailyie, and obliged to relieve, as said is, could not pursue the heirs of line, either for payment, or to renounce, that he might adjudge the lands, quia confusione tollitur obligatio, he being both creditor and debtor; and this pursuit being an indirect way to burden the lands, in prejudice of the heir of tailyie, substituted to him, by an adjudication or comprising, ought not to be sustained.

It was replied, That Brown of Inglistoun, albeit he was nominated heir of tailyie, yet he had never accepted thereof, by taking infeftment or possession; and, being a lawful creditor, ought to have the benefit of law against apparent heirs, either to cause them make payment, or to renounce, until he should enter heir; after which they might pursue for their relief.

The Lords did sustain the pursuit, notwithstanding of the defence, in respect that Inglistoun was never entered heir; but withal declared, that if ever he or his heirs should be heirs of tailyie to the said estate, that then the comprising or adjudication upon this debt should be burdened with the whole provisions of the tailyie; so that any other heir-substitute in the tailyie should enjoy the lands free of the adjudication or comprising for this debt.

Page 309.