Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. VIII.
Mala Fides induced by Process, whether it will take place from Citation, Litis-contestation, or Decree.
Dick v. Oliphant and Others
Date: 14 December 1677 Case No. No 38.
The proponing of improbation, which is ordinary and of course, not being sustained, but reserved, was not found to induce mala fides.
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Sir Thomas Tyrie of Drumkilbo as principal, and the Lord Oliphant as cautioner, being addebted to Janet M'Math in the sum of 10,000 merks, she arrested the like sum in the hands of Sir Archibald Douglas of Kilspindie, and having pursued to make furthcoming, it was alleged, That Kilspindie had granted assignation to Douglas of Lumsdean, of the sum in question, which was intimated by a horning produced; whereupon Sir Laurence Oliphant of Gask, as having right from Lumsdean, was preferred; and the arrester having then alleged that the said assignation was false, relating to a decreet of registration of a later date than the assignation, and offering to prove the same; yet the assignation was preferred, and the improbation was only reserved: Whereupon the arrester insisted in an improbation, in which the foresaid assignation was improven, which was found forged, and made up to answer to the charge of horning, which proceeded upon, and did relate to the assignation; and the true assignation was produced, which was of another tenor, bearing “to be granted to Lumsdean for relief of Kilspindie's cautionry;” but by several writs produced it was instructed, that this true assignation was made only in trust, and was never delivered to Lumsdean; and therefore the arrester was now preferred. And Dick of Grange, as executor to her, did insist against Sir Laurence Oliphant, who, upon a false assignation, had excluded the pursuer, and affected the debtor's land; who having alleged, That he had possessed bona fide, and was denuded in favour of Sir James Douglas; for whom the like was alleged, That he was denuded in favour of Blair of Gleschinie; for whom it was alleged, that they had possessed bona fide, having acquired the right made by Kilspindie to Lumsdean, to the sum in question, and all right that Sir Laurence Oliphant had; and having affected Drumkilbo's lands, by adjudication thereupon, they were possessors bona fide, and so could not be liable for the bygone fruits.—It was answered for Dick the executor, that bona fides can operate nothing sine titulo, and a false title is no title; and it would encourage falsehood to secure possession upon any such title.—It was replied, That whatever may be alleged against the forger, it cannot be extended to singular successors, who are not conscious to the falsehood, and acquired, enjoyed, and spent it bona fide.—It was duplied for the arrester, That bona fides cannot be pretended; because improbation was proponed, and carried on all along against their rights, and all the defenders knew the same, and entered into a bond of mutual relief.—It was triplied, That the allegeance of improbation, which is ordinary, and of course, not being sustained, but reserved, doth not inducere malam fidem.
The Lords found the defenders not liable for the fruits intromitted with, and consumed by a colourable title standing, though found false thereafter; and that the grounds then known did not put them in mala fide; but seeing they did possess and exclude the arrester upon a false title, the Lords found them liable in quantum lucrati, viz. in so far as Sir Laurence Oliphant and Sir James Douglas had gotten a greater price than they gave. And Blair having offered to dispone and resign his right in favour of the pursuer, ay and while he were satisfied of the sums arrested for, the Lords found the same sufficient, seeing he was not further personally liable, having only enjoyed the fruits, and not disponed the lands.
It was further alleged against Sir Laurence Oliphant, That Drumkilbo having disponed the lands of Gleschine to the Lord Oliphant, he gave a back-bond, bearing, That so soon as he were relieved of his cautionry to Kilspindie and others, he should denude himself, whereupon he was infeft; and likewise the Lord Oliphant got a gift in Exchequer of Kilspindie's liferent escheat, both which he disponed to Sir Laurence Oliphant, whereupon he gave a back-bond produced, bearing, That when satisfied of 2300 merks due to himself by the Lord Oliphat, he should make furthcoming all benefit he had by these two rights, by relieving the Lord Oliphant of his cautionry for Drumkilbo; which right Sir Laurence had disponed to Blair, with the burden of the back-bond, and Blair became obliged to relieve the Lord Oliphant; whereby both Sir Laurence and Blair being obliged to relieve the Lord Oliphant, who was liable for the arrested sum, as cautioner, both are liable to pay the arrester.—It was answered, That both rights resolving into a relief to the Lord Oliphant, the arrester could not found thereon, neither the Lord Oliphant himself, till he were distressed, and had paid, which cannot be, there being none to represent the Lord Oliphant.—It was replied, That the arrester being now insisting in a declaratory right, justly craving it to be declared, That so soon as he had got sentence against the apparent heir of Oliphant, as charged to enter heir, he might thereupon adjudge the infeftment of relief:
The Lords sustained that part of the declarator, and ordained Sir Laurence and Blair to compt for what profits they had made by the infeftment of relief and liferent escheat, over and above the 2300 merks, the arrester always adjudging the infeftment of relief from the apparent heirs of Oliphant, who was cautioner in the arrester's debt.
