Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. IV.
Gratuitous Alienations.
Earl of Glencairn v. Brisbains
Date: 5 January 1677 Case No. No 41.
A reversion being granted in a disposition to the disponer's heirs only, himself being oberatus; the Lords thought, that if the price were not adequate, (which was to be tried,) are reduction of the disposition, at the instance of creditors, ought to be sustained, and access allowed to them to comprise the reversion.
Click here to view a pdf copy of this documet : PDF Copy
Frangis Freeland of that ilk, having disponed to John M'Nair and Robert Hamilton irredeemably; and they thereafter having disponed the same, with content of the said Francis, to John Brisbain; and the said John having granted a reversion to the said Francis, his heirs of his own body allenarly, for payment of the sum of 8000 merks, and what further sums should be debursed for improving the lands, building or repairing the house with annualrent frae the de-bursements, upon the said John Freeland, his own declaration; and that after the first term, after the said Francis, his decease.—The Earl of Glencairn, creditor to the said Francis Freeland, alleging, That the said reversion was granted by fraud and contrivance, and in prejudice of him and lawful creditors; and that the said reversion was granted in manner foresaid, not in favours of his debtor, but his heirs, for eluding their execution; pursued a reduction of the said disposition made in favours of Hamilton and M'Nair; and a declarator that Brisbain's right should fall in consequence; and that it should be lawful to him to comprise the said reversion, and to use an order as if it had been granted to the said Francis Freeland himself.
The Lords thought, That if the price were not adequate, (which was to be tried) the conclusions aforesaid should be sustained.
Reporter, Thesaurer-depute.Clerk, Gibson.
Fol. Dic. v. 1. p. 68. Dirleton, No 417. p. 204.
*** The Lords found, in this case, That the true value of the lands should be proven, to the effect it may be known whether the price be adequate or not: And albeit the lands had not been laboured by tenants, being still in the heritors hands, the value might, and ought to be proven, by the sowing and increase, and the quantity of the land; and what lands in that part, of the like quantity and quality, may be set for. And it was not enough, that now the Earl of Glen-cairn offered 2000 merks more, in respect the lands might have been improven; or the said offer might be made upon picque or emulation.
In this case the Lords allowed a conjunct probation.
Reporter, Hatton.Clerk, Hay.
Dirleton, No 431. p.213.
*** See The same case as reported by Gosford, voce Redemption.
