Scottish Court of Session Decisions

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

Kincaid
v.
Gordon of Aberzeldie

Date: 26 June 1677

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In an action of declarator, at Kincaid's instance, against Aberzeldie; for payment of a debt due by his father, as vitious intromitter with his moveables, and as intromitting with the rents of his father's lands, wherein he died infeft; as likewise, there being a reduction of his right, as being paid of the sums contained in an apprising, to which he acquired right, being an apparent heir, conform to the late Act of Parliament:

It was alleged for the defender,—That, his father being denounced to the horn, and his escheat declared, his intromission can only be questioned by the donatar, and was no ground of a passive title.

It was replied, That, the apparent heir having no right from the donatar, his intromission was vitious, and made him liable.

The Lords did sustain the defence, notwithstanding of the reply, and found, that the donatar's gift being declared by a decreet, the defunct rebel nor his representatives could have no right thereto; and the goods belonging to the king and his donatar, his representatives in law, could never have any title to the moveables, or moveable heirship; and so their intromission could not be any passive title, to make them liable to other creditors.

It was alleged farther, That the intromission with the rents of lands was no behaviour, because his father was denuded by a comprising, to which the defender had right before his intromission.

It was replied, That there was no infeftment upon the comprising; without which an apparent heir was liable for behaviour.

The Lords did sustain the defence, notwithstanding of the reply; but found, that his intromission ought to satisfy the comprising pro tanto; and therefore ordained a count and reckoning.

It was farther alleged, That albeit he was an apparent heir, and had acquired the right of the comprising, yet there being no order of redemption used, nor he satisfied by intromission, the declarator to find his right null could not be sustained; the Act of Parliament only allowing to use an order within the legal.

It was replied, That the pursuer being willing to satisfy what was resting besides his intromission; and having raised a declarator for that effect, the same ought to be sustained, without any order of redemption.

The Lords did repel the defence, in respect of the reply; and found, That the defender, as apparent heir, being satisfied, by intromission, of the true sums paid for his right of the comprising; and after count, if there be any thing resting, the pursuer having offered presently to make payment, that the delarator being raised within the legal, it ought to be sustained; albeit there was no order of redemption.

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