Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XV.
Of Alienations to singular Successors.
Gordon v. Ferguson
Date: 23 December 1679 Case No. No 117.
A conveyance from a conjunct person to a singular successor, who could not plead bona fides, sustained only to the extent of the sums actually paid.
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Gordon of Troquhen pursues a reduction of an infeftment granted by Cannon of Blackmark to Cannon of Marrogat, his brother, bearing, for undertaking all his debts, and for love and favour; and of a disposition granted by Marrogat to Ferguson of Keiroch; the reason of reduction was upon the act of Parliament 1621. The defender alleged absolvitor, because he was no conjunct person, nor partaker of the fraud betwixt the two brothers, but paid a competent price; and by the foresaid act, third parties not partaking in the fraud are secure.—The pursuer answered, That Ferguson was necessarily partaker of the fraud, it being in the body of his author's right, that albeit it bore for undertaking the disponer's debt, yet there was only 6001. mentioned in a blank, which is scored, and which could not be an adequate price.—The Lords found, That Ferguson could not be free of the participation of the fraud in his author's right.—It was further alleged by Ferguson, That the sum expressed in Blackmark's disposition to his brother, was due to him, and therefore he might lawfully take a disposition from Blackmark, or from Marrogat his brother, which behoved to be effectual, as to his own sum, which was Blackmark's anterior debt.
The Lords sustained the disposition, in so far as concerned Ferguson's own sum due by Blackmark, but declared the right might be affected by the pursuer quoad reliquum, that he might redeem upon payment of Ferguson's sum unless it were proven that Blackmark was a notour bankrupt, when he disponed to his brother; and so could not dispone to one creditor in prejudice of another.
