Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XI.
The Onerosity of Provisions in Favour of Children.
Areskine v. Reynolds
Date: 16 June 1676 Case No. No 79.
Children who had received provisions, found liable upon the act 1621, for their father's debt, while they could condescend on no separate visible estate he had, when the provisions were granted.
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Alexander Reynolds having granted a bond of 2000 merks to Elizabeth Guthrie, his future spouse, or any person she should appoint, payable after her decease; which bond being now in the person of Areskine, he pursues the children of the debtor for payment; on this ground, that the debtor had provided them to all his means and estate; which provisions being fraudulent in prejudice of creditors, they are liable by the act of Parliament 1621, to make furthcoming to the creditors, whatsoever they uplift by virtue of such fraudulent dispositions. —The defender alleged absolvitor, because they did no way represent the defunct; and it was unreasonable, and a novelty, to pursue children having received provisions, as representing their parents by a passive title, especially young children that could not be heirs.
The Lords repelled the defence, and found that it was not a passive title, as representing the defunct, but a passive title founded upon the act of Parliament, and the defender's own fraudulent deed in accepting it, to exhaust the debtor's estate, but allowed them to condescend upon any other visible estate that the defunct had at the time of their provisions, that might purge the fraud and vitiosity of these provisions.
Stair, v. 2. p. 428.*** The same case is thus reported by Dirleton:
1676. February 22.
The Lords Sustained a declarator, at the instance of a creditor, to hear and fee it found, That certain sums, provided by a father to his children, after the contracting of the debt, should be liable and subject to execution for their debt; and that they should be liable themselves in quantum lucrati, though there was not a reduction intented of the said rights, upon the act of Parliament 1621; which the Lords were moved to do, not only because they thought, that the said declarator is a reduction upon the matter, but the rather that the summons were offered to be proven by the defenders own oaths: And in effect, as to the most of the sums, they were not a subject of reduction; seeing the debts were not all assigned to the children; but the bonds being blank in the creditors name, the father had filled them up in the name of the children; and as to such as were assigned, for the most part, they were renewed in the name of the children; the former bonds being given back, with assignations to the same.
1676. July 6.
The Lords found, That a father having assigned certain bonds’ for provision of his children, the creditors have not only an action of reduction competent to them, but a personal action to refund the sums uplifted, upon the bonds, if the assignation should be found to be fraudulent: But did reserve to the defenders to debate, whether the same was fraudulent; the defenders having alleged, that the same were granted by their father, having a plentiful fortune for the time, so that he might lawfully provide his children.
Reporter, Newbyth.
Dirleton, No 344. & 373. p. 164, & 182.
