How far the Disposition must be onerous, to elide the Passive Title.
Hadden v. Haliburton
Date: 15 February 1676 Case No. No 124.
Where there is an onerous cause, altho' not fully equal to the worth of the lands, the disponee is liable only in valorem.
See in the next case, that if the cause onerous be inconsiderable, a passive title will be incurred.
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Patrick Hadden pursues George Haliburton as lucrative successor to his mother, by a disposition granted by her to him of lands wherein he was alioqui successurus, after contracting of the pursuer's debt, who alleged absolvitor, because the disposition bears to be for sums of money, and so is not lucrative but onerous. It was answered, That the narrative of the disposition proves not betwixt mother and son. Whereupon it was alleged by the defender, That any colourable title was sufficient to purge the passive universal title, but the pursuer might reduce upon the act of Parliament; 2do, The cause onerous was offered to be proven.
The Lords found, that the disposition, with an onerous narrative betwixt mother and son, did not prove; but found, that if the cause onerous were proven, though not equal to the worth of the land, the defender should not be found simply liable, but quoad valorem in quantum lucratus est, without necessity of a reduction. See Proof.
