How far the Disposition must be onerous, to elide the Passive Title.
Higgins v. Maxwell
Date: 29 November 1678 Case No. No 125.
An obligation in a contract of marriage, to provide the estate to the heir of the marriage, found not to be an onerous cause to protect the eldest son, to whom the estate is afterwards disponed, from being liable as lucrative successor.
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John Higgins having right to a bond, wherein umquhile——Maxwell of Munches was cautioner, pursues this Munches, as behaving as heir to his father, by intromission with the rents of the lands wherein his father died infeft. The defender alleged, Absolvitor, because his father was denuded by a disposition in his favours. The pursuer replied, That, by the disposition, he was successor to his father titulo lucrativo post contractum debitum. The defender duplied, 1mo, That, by his mother's contract of marriage, his father was obliged to infeft the eldest son of the marriage in these lands, being the second marriage, and therefore the infeftment was but in implement of that obligement, anterior to his debt; neither were the lands provided to him as heir of the marriage; 2do, The disposition bears to be for onerous causes, and debts paid and undertaken, which the defender offers to instruct otherways than in the narrative of the disposition. The pursuer triplied to the 1st, That all obligements in favours of children are always understood to be in way of succession, whether it be to them as heirs, bairns, or as the eldest son or daughters, for thereupon the father could not be excluded from his liferent, seeing he might infeft his son at any time in his life; and if such clauses were otherwise interpreted, no creditor would be secure, but such latent clauses might still exclude them by infeftments granted thereupon after contracting other debts. To the 2d, Non relevat, unless the cause onerous be proven equivalent to the worth of the land; for if it be not, it remains a lucrative title, and would give a rise to fraud, if a right onerous in some part would exclude this positive title, and put creditors to reduce.
The Lords found, that the infeftment to the eldest son made him liable as lucrative successor, although there was an obligement in his mother's contract to infeft him, not having a determinate time, in his father's life, before contracting of this debt; but found the duply of the cause onerous relevant, reserving to the Lords, after probation, to determine as to the equivalency of the cause onerous to the worth of the land; for the Lords thought, that if the cause onerous was short of the worth considerably, as within the half or the like, that it would infer the passive title, but if it were near the worth, it would not, though there might be place for reduction to reach the excrescence.
Fol. Dic. v. 2. p. 36, & 37. Stair, v. 2. p. 648.*** Fountainhall report this case:
Higgins against Maxwell of Munshes, for a debt of his father's, as successor titulo lucrativo, p. c. d. Alleged, He had the disposition for implement of his mother's contract-matrimonial, providing the estate to the eldest son.—The Lords repelled this. Then he alleged, He had it for onerous and adequate causes.—The Lords ordained, before answer, the pursuer to prove the worth of the lands, and the defender the causes; and declared, if they amounted to nine parts of the true price, dividing the price in twelve parts, they would not find it a passive title, but only decern him to pay the superplus. Some thought the contract being to the bairns of the marriage, his accepting a posterior disposition was not a passive title, and that he might retour his blood as bairn.
