Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Doctor Halyburton, Margaret Nevoy, and other Creditors of the deceased Lord Couper,
v.
The Lord and Master of Balmerrinoch

Date: 26 January 1677

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In the forementioned action, at the instance of the creditors of the Lord Couper, against the Lord Balmerrinoch; notwithstanding the Lords had found, by their interlocutor, that the Lord Balmerrinoch, being apparent heir, and having apprised for his own debt the Lord Couper's estate, by himself or others, to his behoof; and having ratified the Lady Couper's additional jointure for an onerous cause, and thereby had possessed the whole land; it was sufficient, in law, to infer a passive title, to make him liable to the Lord Couper's true creditors: Yet, being allowed to be farther heard, he did allege, That the Lady's possession could never be a sufficient ground to infer that passive title; because the creditors never having intented a removing, or an action for maills and duties; the Lady did only possess suo periculo, and might be pursued, not having ascribed her possession to any right flowing from the apparent heir, it could infer no passive title against him; which the law never extends but to clear deeds, and not to presumptions, as being most unfavourable: whereas, if the creditors had pursued any possessory judgment, then, undoubtedly, they would have obtained to the possession; and, if the Lady had defended upon his right of apprising, they might have reduced the same.

It was answered for the creditors, That the Lady, having entered to the possession by that only right she had from the Lord Couper, which was reduced ex capite lecti, and likewise at the creditors' instance ex capite inhibitionis, her possession ought to be ascribed to the Lord Balmerrinoch his right; which flowing from him, being apparent heir, and that for a most onerous cause, the law does always interpret the possession of any having right from apparent heirs to be theirs, seeing it cannot be ascribed to any other right: and the creditors were not obliged to pursue a possessory judgment, seeing they would have been secluded until they had reduced Balmerrinoch's apprising; and, if this were allowed, it would open a door to prejudice all lawful creditors.

The Lords did repel the allegeance, and adhered to their former interlocutor; upon that ground of law,—That where the title whereby any person enters to the possession is reduced, they, having another title, must of necessity ascribe the continuance of their possession, after reduction, to the supervenient title: as likewise, whoever grants a title of possession to another, their possession is his, and makes him liable as if he had possessed himself: so that the creditors, having an undoubted ground in law to make the apparent heir liable to their debts, as successor titulo lucrativo, they needed not pursue a possessory judgment against any having right from him; which were indeed to give great advantages to contrivances, thereby to enjoy an opulent estate and not to be liable to the debts.

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