A disposition being challenged as on death-bed, the disponee alleged onerous causes, and condescended, that he was creditor to the defunct by a clause of warrandice. The Lords sustained the disposition as a security of the clause of warrandice; but that the lands disponed upon death-bed might not be perpetually burdened with that relief, they restricted it to distresses occurring within seven years.
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William Lawrie having adjudged the lands of Scotstoun upon a debt due by Mr John Drummond the apparent heir, and to his own behoof, pursues a reduction of a disposition of the saids lands granted by Sir Robert Drummond to Sir John Drummond, as being done on death-bed, which disposition bears, ‘For love and favour, and for divers onerous causes;’ whereupon the Lords did formerly find, that the disposition was sustainable, in so far as an onerous cause could be instructed; and thereupon Sir John having produced several debts due by Sir Robert to him, doth now insist, upon this ground, that Sir Robert was debtor to Sir John by the clause of warrandice of the lands of Meidhope, disponed by Sir Robert to Sir John in liege poustie, which not being for an equivalent cause onerous, anterior creditors might reduce the same, in which case Sir John could have no recourse upon the warrandice, the estate going to a singular successor; and it cannot be questioned but a disposition on death-bed, making a personal warrandice real, was for an onerous cause, and not reducible.
The Lords sustained the disposition as a security of the clause of warrandice of Meidhope, providing that any distress upon that clause be timeously intimate, and that Sir John make use of all the rights he hath to exclude the distress, either by virtue of Sir Robert's disposition or otherways; and that the lands may not be perpetually burdened with that relief, they restricted the same to distresses occurring within seven years; seeing the Lords did extend the disposition beyond the express tenor of it, to what was just for Sir Robert to have granted, or wherewith Sir John might have affected the lands of Scotstoun, if they had been in another man's person; therefore the Lords found that they might qualify the same in these terms.
Fol. Dic. v. 1. p. 214. Stair, v. 2. p. 408.*** Gosford reports the same, case:
In the reduction at Blackwood's instance, of the disposition of the lands of Scotstoun, as being made in lecto, in so far as it was not for an onerous cause adequate to the worth;—it was alleged for Sir John, That he could not be obliged to dispone in favours of the pursuer, as having adjudged from the apparent heir of Sir Robert Drummond, but with the burden of the absolute warrandice of the lands of Meidhope, whereby Sir John was obliged to relieve Sir John of all cautionries, and, in contemplation thereof, the lands of Scotstoun were disponed, which was a most onerous cause. It was replied, That the defender being satisfied of all just and onerous causes that he could now instruct, the pursuer not being heir to Sir Robert, but a creditor to the apparent heir, and having adjudged his right, the lands of Scotstoun ought to be adjudged to him free of any such warrandice, unless the same were real, and did affect the same before Sir John's disposition, without which the creditors had only personal actions against his heirs or representatives. It was duplied, That this pursuit being to the behoof of the apparent heir, upon his own bond, voluntarily granted, and the pursuer Blackwood having no interest, the disposition ought to be qualified with the warrandice, unless Mr John, the apparent heir, would serve himself heir to Sir Robert, in which case the defender, by inhibition, or legal diligence, might secure himself from emergent cautionry, otherwise Sir John could never get his relief, seeing the lands of Scotstoun may be disponed with consent of the apparent heir, against whom no inhibition could take effect, Blackwood not being personally tied, and Mr John having renounced to be heir.——The Lords did find, that the disposition of Scotstoun ought to be affected and burdened with the debts and cautionries wherein Sir John stood obliged for Sir Robert Drummond, which could be presently instructed, or should be emergent within seven years, which they thought was sufficient time for discovering all such engagements, seeing it was not imaginable the creditors would delay so long, to their prejudice, to pursue for payment and satisfaction, where there were so many intricacies; but, as to such cautionries, they found that it was most just that the disposition should be affected, it being, granted that the reduction was to the behoof of the apparent heir, who, of purpose, did renounce and take that way, that he might be free of all actions competent against him if he had entered heir; so that it was just that either he should enter, or the disposition of the lands be affected.
