If probative of its Onerous Cause against Creditors and Donatars of Escheat.
Trotter v. Hume
Date: 22 June 1680 Case No. No 453.
Fraud against creditors not inferred by a disposition of lands for debts.
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Robert Trotter pursues a reduction of a disposition granted by George Hume in favour of umquhile Major Hume, as being in defraud of him a lawful creditor, without a cause onerous; for though it bear, for sums of money paid and undertaken, conform to an inventory, yet non constat that the sums undertaken were paid, or that they were just and resting debts; so that it is not an equivalent cause onerous, till the inventory be produced, and the debts to be instructed to be true debts, and paid by the buyer. It was answered, That the narratives of dispositions need no further instruction, when the buyer is a stranger, and no conjunct or confident person, unless the contrary be proved by writ, or the defender's oath; for it is ordinary for buyers to undertake debts as a part of the price, and to retire the principal bonds to the seller, and never conceive themselves obliged to keep inventories, or instructions, which are sufficiently instructed by the narrative of the disposition; nor are they obliged to debate, whether the debts they paid by the seller's order were due or not, but as they might pay the price to the seller, so they might to any to whom he ordered payment, without inquiring the cause. It was replied, That the inventory and instructions ought at least to be instructed so far as extant, because if the debts undertaken be not paid, the pursuer may arrest, and in the inventory the pursuer's debt may be comprehended.
The Lords found the narrative of the disposition of undertaking the debts, did instruct the cause onerous, the buyer not being a conjunct or confident person, and would not oblige the buyer's heirs to produce the inventory, or the instructions thereof, even so far as extant, unless it were offered to be proved thereby, that the pursuer's debts were a part of the price contained in the inventory, but left the pursuer to the ordinary course of arrestment, for making furthcoming any part of the price unpaid.
Fol. Dic. v. 2. p. 253. Stair, v. 2. p. 772.*** Fountainhall reports this case:
This being likewise on the said act of Parliament 1621, alleged, They not being conjunct persons were not bound to instruct farther the onerous cause of their disposition than by its own narrative. Answered, They must condescend farther, because it bears not the simple receipt of money, but is for debts undertaken conform to an inventory. The Lords sustained the disposition, and found the defender was not holden to produce or instruct the said onerous cause or inventory, unless the pursuer would offer to prove by his oath, that his debt was one of the debts contained in the inventory which they were burdened to pay; 23d June 1680, Mary Piers against John Black, vintner, (See Appendix) The warrandice of his tack would indeed import that there should be no eviction nor pretender to the property or possession of the house, that should disturb or dispossess him, but will not extend to a casual accident of a neighbour's building, which though it incumbered the entry to his house, yet did not totally obstruct it; for if the obstruction had been total, I think the Lords would have freed him from the duty, as they do with tenants in prædiis rusticis where there is a total vastation per vim graculorum, by thunder, &c. falling out, sine culpa conductoris, ut D. l. 33. & 35. Locati Conducti.
