Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XIV.
Who are to be accounted Prior Creditors.
Cathcart v. Glass
Date: 28 November 1679 Case No. No 112.
A gratuitous disposition reduced at the instance of a prior onerous creditor, by an implied warrandice, though the decree establishing the debt, upon incurring the warrandice, was not obtained, till after the disposition.
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George Cathcart pursues reduction of a disposition made by Glass to his good-brother, who married, his sister, as being fraudulent betwixt conjunct persons, in prejudice of the pursuer, a lawful creditor, in this manner, viz. Glass, though but a shoemaker, took up a trade of buying seeds in Holland, and sold them to gardners in Scotland, a parcel whereof he sold to the pursuer, which being corrupt and insufficient, the pursuer obtained decreet against him for repetition of the price.—It was answered, That there was no debt constituted against Glass before the disposition, but by a process long after the same.—It was replied, That the process did not constitute, but declare the debt; but the debt was constitute before the bargain for the seeds, which did imply warrandice against latent insuffiency: And suppose the bargain had been after the disposition, yet it being betwixt two good-brothers, without a cause onerous, it must be presumed to have been a contrivance animo fraudandi, to let Glass go on to trade and to deceive him; and in case he should be questioned, his good-brother should enjoy his tenement, as was found in the case Street contra Jackson and Masson, Stair, v. 2. p. 197. voce Fraud, where a disposition by a father to the son was reduced upon debts contracted thereafter; and the like, Reid of Balloch mills contra Reid of Daldilling, Stair, v. 2. p. 144. and 234. voce Fraud.
The Lords found the reasons of reduction, relevant; that the bargain for the seeds was before the disposition, or though posterior, that the disposition was made upon the fraudulent design alleged; but found it not inferred, because it Was granted to a conjunct person, unless he were partaker of the fraud; therefore found the contrivance only proven by writ or his oath; but if other pregnant circumstances in fact were adduced to infer the contrivance, the Lords would consider the same.
