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A Party being pursued upon the passive titles, and in special upon that of charged to enter heir; and having offered to renounce, it was replied, That he could not, seeing res was not integra, in respect he had granted a bond, of purpose that thereupon the estate might be adjudged; the Lords found, that, albeit he had not granted the bond upon the design foresaid, yet, the estate being adjudged and incumbered by his deed, he ought to be liable to the defunct's creditors pro tanto, or to purge.
It is thought, that if the apparent heir should dolose grant a bond, that the defunct's estate might be thereupon adjudged, he ought to be liable in solidum; but if he grant a bond which is a lawful deed, and thereupon his creditor adjudge, which he could not hinder, it is hard to sustain a passive title against him; unless his creditor, having adjudged, were satisfied by that course; in which case, seeing the defunct's creditors are prejudged, it is reason he should be liable pro tanto.
Fol. Dic. v. 2. p. 33. Dirleton, No 380. p. 185.Clerk, Gibson.*** Stair reports this case.
In a process betwixt Jeffray and Murray, the defender being pursued as lawfully charged to enter heir for a defunct's debt, offered to renounce; the pursuer answered, That a renunciation is not relevant, unless it were made re integra. But, in this case, the defender hath granted bond for her proper debt, whereupon the defunct's heritage is apprised or adjudged, and whereby the pursuer will be excluded or postponed. It was replied, That the granting of the bond by an apparent heir, though apprising or adjudication followed, doth not infer the passive title of behaviour, unless the apparent heir take right to, and intromit by the said adjudication or apprising, as is clear by the act of sederunt upon the Earl of Nithsdale's case, No 84. p. 9738. the 28th day of February 1662. It was duplied, That the general passive title of behaviour, making the apparent heir liable to the defunct's whole debt, is not here insisted upon, but the passive title of charged to enter heir, which reaches only to the debt, whereupon the charge is raised, and which is elided by a renunciation re integra, which cannot be where the defunct's heritage is affected for the apparent heir's proper debt.
The Lords found the reply relevant, that the defunct's heritage was affected for the apparent heir's proper debt, by apprising or adjudication, to exclude the apparent heir's renunciation, and to make her liable for this debt, unless she purge the apprising, or adjudication of the defunct's heritage for her own debt, it not having been the defunct's debt.
