The disposition must flow from the father. - The disponee must be apparent heir in the subject. - Effect of the disponee dying before his father. - Disposition in trust for behoof of the apparent heir. - What must be the nature of the subject disponed to infer the passive title? - Acceptance of the disposition sufficient. - Bonds disponed to the heir will be presumed to have been heritable, in order to infer the passive title.
Hamilton of Pardowie v. Mr Andrew Hay
Date: 7 February 1679 Case No. No 115.
Bonds disponed to the heir presumed heritable, in order to infer the passive title.
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The Lords found the son not liable for the father's debt, contracted after the son's fee by the contract of marriage, but found him liable in quantum lucratus.
Fol. Dic. v. 2. p. 36. Fountainhall, MS.*** Stair reports this case:
John Hamilton of Bardowie pursues Mr Andrew Hay for relief of a sum, whereunto his father was conjunct cautioner with Bardowie's predecessor, and also for another sum due by his father to the pursuer, upon these passive titles, viz. That by his contract of marriage his father had contracted to him for several sums, and that after the cautionry foresaid, and after the other bond, the defender had bought a considerable bargain of land, which must be presumed to have been purchased by his father's means and money, especially seeing his father shortly before sold lands for 37,000 merks, and the defender was a person having no visible way to acquire so much land as he bought, by his own means; and therefore he must be liable for these debts, at least the lands acquired by the defender must be affected therewith, and he must be liable for the provisions in his contract in quantum lucratus est. The defender alleged, That neither of these grounds are relevant, for any lands he has acquired was after he was married, and had both gotten a provision from his father, and a tocher with his wife; and though the Lords have sustained the presumption, that lands acquired in name of children unforisfamiliated, are purchased by the father's means, and liable to his debt, unless the contrary were instructed, yet there is no ground to extend that to a person married, and forisfamiliated, who not only had means, but might have contracted debts for the lands acquired.—The Lords found the defender's land not liable upon this presumption, but that it might be proved by his oath or writ, that these lands were acquired by his father's means, after contracting of these debts.—And as to the second ground the defender alleged, That suitable portions by parents to children were never found quarrelable by reduction, at the instance of prior creditors, if the father then had a sufficient visible estate to pay his debt, attour the portions, as was found in the case of the Children of Mouswell, No 60. p. 934. much less can the children be liable personally.—The pursuer answered, That whatever might be alleged as to tochers of daughters, or the provisions of younger sons, yet provisions to the eldest son and apparent heir, being in effect præceptio hæreditatis, it must must make him liable in quantum lucratus.—It was replied for the defender, That the provision might be out of the father's moveables, for unless it were proved to be out of his heritable rights it could not import.
The Lords found, That the apparent heir being provided to sums by his father, was liable for his father's anterior debts in quantum lucratus; and would not put the creditors to prove, that the same was made out of heritable sums, unless the contract of marriage did expressly bear assignations to moveable sums.
