An heir being served, and possessing by infeftment, to continue till a sum was paid, his intromissions were found to extinguish his infeftment.
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James Frank having borrowed 3000 merks from James Porteous, gave him an infeftment for security thereof, in some tenements in Edinburgh, and having married his daughter, who is his only child, to John Moubray, by contract of marriage with him, he disponed the said tenements and others; and by contract Moubray became obliged to pay all his debts; upon which obligement, Porteous as creditor to Frank incarcerates Moubray, and for obtaining his liberation, he granted a bond of corroboration to Porteous, relating the contract of marriage, and his obligement to pay Frank's debts, with this reservation, that he might impugn the validity of the debt, or that it was not resting unsatisfied, except Porteous's infeftment, which he obliged him never to quarrel, till it were satisfied at two terms exprest in the bond. Porteous died in possession of Frank's tenements, and there succeeded to him, one Porteous who is served heir in general, and continued to posses. John Alexander, writer, having apprised Frank's right, pursued a count and reckoning against the apparent heir of the second Porteous, and obtained decreet upon probation by witnesses, that James Porteous in his own time was satisfied of the whole sum, except 300 merks, and that his heir had intromitted with more than 3000 merks, and therefore the security was declared satisfied and extinct. James Thomson, one of the clerks of the Exchequer, obtained a gift of bastardy of James Porteous's whole rights, as falling in the King's hands through his bastardy, dying without lawful children, and upon the gift was infeft in the tenements of the said James Frank; whereupon he did reduce the service of the said Porteous, as heir to James Porteous, and obtained decreet of mails and duties against John Moubray, son-in-law to Frank, who possessed the tenements. John Moubray, and John Alexander, having apprised from him and Frank, raiseth suspension of this decreet, which was in absence, on this reason, that James Thomson the donatar was but substitute by the King as last heir to Porteous, and could be in no better case than Porteous, or the heir of his body, Who if they were pursuing upon Porteous's right, would be excluded by the decreet of declarator finding Porteous's right extinct by intromission. It was answered for the donatar; That the decreet could not exclude him who was not called thereto, albeit he was then publicly infeft upon his git. 2do, Moubray, who was Alexander's author, had ratified Porteous's right shortly be fore he died, and obliged himself to pay the 3000 merks at two terms, yet this decreet proceeds upon Porteous's own intromission, which is past from by the bond of corroboration. 3tio, The probation in the decreet was proving the intromission by witnesses, to take away an infeftment, which was not cempetent. It was replied for the suspenders; That albeit the donatar was publicly infeft, yet it was of course, and they were not obliged to call him in the declarator of extinction, seeing he was not in possession, but it was sufficient for them to call Porteous's heir served and retoured, or his apparent heir, who compeared in the process; and albeit his service was thereafter reduced, yet what he possessed bona fide under that title, he was not countable for, and his satisfaction by intromission was equivalent as if payment had been made to him bona fide, which would liberate Frank, and exclude the donatar; and as to Moubray's bond of corroboration, it was null, as extorted metu carceris, neither did it exclude, or discharge Porteous's intromission, nor had any mention thereof, but only acknowledged the right to be valid till it were satisfied; and witnesses were very competent to prove intromission, though to take away the infeftment, for witnesses are only excluded to take away writ, in cases where the writ is accustomed to be taken and neglected, as in discharges upon payment, which reaches not to intromission.
The Lords found, That the donatar was not necessary to be called in the declarator, but allowed him any competent objection against it, but repelled the objection of proving the intromission by witnesses, though to extinguish the infeftment. They found also Moubray's bond of corroboration to be valid, albeit granted in prison for a civil debt, and that it was not force; but they found the bond of corroboration did not exclude the import of Porteous's intromission.
Fol. Dic. v. 2. p. 225. Stair, v. 2. p. 373.
*** Similar decisions were pronounced, 4th February 1671, Wishart against Arthur, No 3. p. 9978. voce Payment; and 25th January 1711, Baillie against Menzies, No 15. p. 9990. Ibidem.
