Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
Blackwood v. Boyd
Date: 14 June 1677 Case No. No 68.
An aliment to an apparent heir, which was considerable, was found affectable by creditors.
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Blackwood having arrested the rents of Pinkill upon a bond; wherein Pinkill became debtor for Adam Mushet, he pursues the tenants for making furthcoming.—It was alleged for Pinkill, That his father disponed the lands in question to the defender's son, reserving his own liferent, except 500 merks yearly to the oye; by which disposition the defender's liferent was expressly constituted as an alimentary provision; and as the disponer might have disponed all to his oye, without reservation; in which case the defender's creditors could have no access for the defender's proper debt; and all aliments expressly so constituted being propter victum et amictum, are still free of any debt, but what is for these ends; so the pursuer cannot quarrel the defender's aliment.—It was answered, That albeit aliments so expressly constituted by persons who are noways obliged, when only sufficient for intertainment of the party according to their quality, have been sustained against that party's other debts, but for aliment; yet here the liferent reserved is in favour of the disponer's apparent heir, and of his whole estate, which, were of dangerous consequence to allow; especially seeing the estate doth far exceed a sober aliment in three or four thousand merks yearly; and if in any thing it were restricted, the pursuer's debt being very small, it would have effect.
The Lords repelled the defence, in respect of the reply.
Fol. Dic. v. 2. p. 77. Stair, v. 2. p. 523.*** Dirleton reports this case:
A father having infelt his grand-child in fee of his estate, and his son, father to the fiar, in liferent, with a provision that the liferent should be alimentary to him; the Lords, upon a debate amongst themselves concerning the said qualification of the liferent, were of the opinion, That the son being provided before to some other lands simply, without the said quality, the creditors of the son might, by their diligence, affect the said alimentary liferent; except so much of the same as the Lords should think fit to reserve for a competent aliment to the son; but there was not a decision in the case.
