Subject_1 CREDITORS OF A DEFUNCT. Subject_2 SECT. I.
Decisions upon Act 24th, Parliament 1661.
Paterson v. Bruce
Date: 19 December 1678 Case No. No 4.
The Lords found, that the axiom contra non valentem agere, non currit præscriptio, takes no place in the short prescriptions; and that the three years are not to be understood of anni utiles, but continui; and therefore, that the act cannot be extended to this case, where the term of payment fell sometime after the defunct's death, and the creditor had done diligence within three years, counting from the term of payment.
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In a competition betwixt Captain Paterson and David Bruce, both having apprised the lands of Thomas Tweedie, from his apparent heirs;—it is alleged for Paterson, That he ought to preferred, because he has the first apprising aud infeftment.—It was answered for Bruce, That his apprising, though posterior, is upon the defunct's debt, and Paterson's is upon a bond granted by the apparent heir; and therefore, by the act of Parliament preferring the diligences for the defunct's debts, before the apparent heir's, the said diligences being done within three years, are preferable.—It was replied, That the foresaid act prefers only diligences for the defunct's debt, being done within three years after the defunct's death.—It was duplied for Bruce, That these three years must be anni utiles; but here Bruce could use no diligence, because the term of payment of his debt was not come; and the narrative of that act bears, ‘That the defunct's creditors either did not know, could not, nor used no diligence;’ and there can be no case more favourable than this, where Paterson's right is upon a fraudulent gratuitous bond of the apparent heir's.—It was triplied, That this statute being correctory of the former law, which did not distinguish the defunct's debt, from the heir's debt, cannot be extended beyond the terms expressed, of diligences done within three years after the defunct's death, and if it were otherwise extended to bonds conditional, or whereof the terms were not come, that they should have three years after the purification of the condition, which might run for 40 years, it would unsecure all legal diligences and purchasers from heirs, though for onerous causes; and though the apparent heir's bond in this case be gratuitous, the statute cannot be extended, which mentions expressly gratuitous deeds of the heir's, and makes no exception as to these; neither doth the exception of non valens agere, continue any prescription, except where it is expressed, as in the prescription of heritable rights, but it hath no effect in the prescriptions of spuilzies or removings.
The Lords found, That though the apparent heir's bond was gratuitous, the diligence upon the defunct's debt, could not be preferred to a prior diligence on the apparent heir's bond, unless the diligence on the defunct's debt were within three years of the defunct's death, and that no impediment could continue the three years; but whether the defunct's creditors might not reduce the gratuitous bond of the apparent heir, that occurred to the Lords, and they allowed the parties to be heard thereon; and, after a full hearing, reduced the same. See Heir Apparent.
Fol. Dic. v. 1. p. 206. Stair, v. 2. p. 659.*** Fountainhall reports the same case:
Found, That non valens agere takes not place in the short triennial prescriptions, but only in that of 40 years; but found, that the three years mentioned in the 24th act of Parliament in 1661, for preferring the defunct's creditors doing diligence against the predecessor's estate after his death, were not to be understood of anni utiles but continui, and so found that the said act of Parliament cannot be extended to this case.
