Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Creditors of East-barns
v.
The Executors thereof

Date: 8 January 1679

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Inglis of East-barns did grant an infeftment to Patrick, his eldest son, of his estate, bearing, for relief of debts,—wherein his son was cautioner, conform to an inventory: whereupon the son was infeft in February; and, in December thereafter, he did infeft his wife in an annualrent out of that same estate, in place of a provision of a contract of marriage. Whereupon she craved preference: because both infeftments being base, hers, though posterior, was peferable; because, being for implement of a contract of marriage, it requires no other possession but the husband's, and so was valid from its date: whereas the son's infeftment was clad with no possession, till the ladies' infeftment; at least any possession he had was but simulate,—he being unmarried, with his father in the family,—and got only a simulate delivery of the goods on the mains, which was ploughed, and a part of it sown by the father, 2do. The son's infeftment was fraudulent, without an adequate cause onerous; in prejudice of the lady, who is an anterior creditor by her contract of marriage.

It was answered for the creditors, That they had proven possession in all that could be attained by the son's right, viz. by a real delivery of the possession of the mains, and all the goods upon it; and the father, being a beadle, never meddled thereafter, though he lived two years; but the son bought plough, oxen, seed, and paid the servants' fees. All which the Lords found proven. And the question arising, whether the possession of the mains would extend to validate the infeftment as to the rest of the estate,—

The Lords found, That it would validate the same, in so far as might be extended to the lands in the same infeftment with the mains; and, as to the fraudulency of the son's right, the creditors offered to prove, that it was for a cause onerous, equivalent to the worth of the land. But the question arising, that, if the cause onerous were not equivalent, whether the son's infeftment should be sustained and preferred, in so far as the cause onerous was instructed,—

The Lords did sustain the same pro tanto; and ordained the creditors to have preference to so much of the estate as they would choice, equivalent to the sums: that the lady's executors might have access to the rest.

Vol. II, Page 665.