Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. VII.
The manner of estimating Liferents in the Computation of a separate Estate.
Lord Queensberry and Creditors of Mouswell v. the Children of Mouswell
Date: 20 December 1682 Case No. No 61.
The above judgment afterwards altered; and it was found, that the liferents should be reckoned according to the full time they had to run; and if subsisting at the time of challenge, some additional consideration ought to be made for the probable future duration.
See No 58. P. 932. where the liferents having expired, while the cause was still in dependence, they were computed according to the full time they had subsisted.
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In the competition betwixt the children and the creditors of Mouswell, December 11. 1679, supra, the Lords having sustained it relevant to elide a reduction, upon the act of Parliament 1621, of bonds of provision granted by a father to his children, that he, at the time of granting these bonds, had an estate sufficient for these bonds, and all his other debts; and having ordained the creditors to condescend upon, and instruct what debt the father then had, and the children to instruct what estate he then had, there was a probation adduced as to both; and particularly it was found proven, that the lands of Mouswell were worth L. 2300, by the computation whereof at sixteen years purchase, it appeared, that the father had then a sufficient estate; of which decreet, reduction was raised upon this reason, that the fee of the lands being, at the granting of the bond of provision, in the person of the granter's son, these lands could not be reckoned any part of the granter's estate; and seeing this reason did not concern the justice of the Lords decreet, but an error in fact, as to the explication in the probation, the Lords ought to turn the decreet into a libel, and to consider only that part of the probation relating to the father's estate; and if the fee, which in the son's person before the bond of provision, be subduced, the father's estate will not answer anywise to his debt; so that the children's right ought to be reduced. And in the like cases between the Lord Bargeny and Pinkel, and also between Stark of Killermonth, and one Heriot, where the probation led and advised was found, after extracting, to have been advised upon a mistake, as not directly concerning the point to have been proven by the act, the Lords turned these decreets into libels. See Process.
Answered for the children:—Decreets of session in foro are the great securities of people, and cannot be taken away by any pretence of mistake or iniquity. 2do, 'Tis probable, though the decreet did not express so much, the Lords found the fee's being in the son's person did not alter the case, seeing it was liable to the creditors reduction, as being post contractum debitum, and so no impediment to hinder the father to grant bonds of provision.
Replied: If such mistakes were not remedied, it were in the power of the clerk and the party to obtrude impertinent probations, which meet not the act, which would be a dangerous preparative. 2do, The estate could not be reckoned the father's, who was denuded of the fee; and although the disposition to the son might be reducible, at the instance of the granter's anterior creditors, yet the father was thereby truly denuded, and they were not obliged to run the hazard or expence of a tedious process of reduction: For the father doing omne quod poterat to denude himself, must be considered as an effectual denuding quoad him and his children; and are not gratuitous bonds, though reducible as lucrative deeds post contractum debitum, at the instance of anterior creditors for onerous causes, computed always as a part of the granter's debt?
The Lords turned the decreet into a libel.
In the first process, there having been two liferents condescended on, as a part of the debt upon the father's estate, the Lords did formerly modify the old Ladies to five years annuity, and the young Ladies to seven, although, at the time of the advising, in anno 1679, these liferents had run for twenty-six years, and the liferenters were then alive; but now they were of opinion, that all liferents in this case should be reckoned according to the full extent of the burden upon the estate at the time of advising; and some consideration for the time to run after advising; for although, at the time of granting bonds of provision, it had been rational to have considered liferents according to the age of the party, seeing long life and a sudden death were equally contingent; but now, when the thing is certain, it ought to be considered as it fell out; and if the liferenter had lived but one year after the bond of provision, it ought now to be considered but as the debt of one year's annuity, and not five or seven. But this was not voted.
In this process, it was alleged, That although persons having some debt, and a considerable estate, might dispone or grant bonds lucrative, yet they ought not to dispose upon the secure, conspicuous, and accessible part of their estates lucrative, and leave anterior creditors to expiscate and find out the remaining part, which may be much more inconvenient for the creditors than what is disponed, and upon the credit whereof they lent their money; besides, there ought not to be an exact compensation betwixt a debtor's estate and his debt, the time of his disponing lucrative, or granting such bonds; but there ought to be a large reserve to answer the hazards and charges that creditors are frequently put to, in recovering their debts after such fraudulent deeds, and the estate ought likewise to be conspicuous and accessible by the anterior creditors. But there was no occasion for pronouncing interlocutor upon this point.
Thereafter the children alleged, That their father could not be said to be bankrupt, seeing he must be repute to have had the fee of the estate of Mouswell at the date of their bonds of provision, seeing the creditors were not prejudged by the disposition to the son, which was reducible at their instance upon the act 1621. 2do, That he had a liferent by reservation, of a wood worth 1000 merks.
3tio, That he died infeft, and in possession of an estate about Dumfries, worth 12,000 merks per annum. 4to, That he had a debt due to him by Hampsfield, and another by my Lord Herries, which were good debts in the year 1654, at the time of the granting the bond of provision, though now they be grown worse by the creditors neglect.
The Lords found, That the father having disponed the fee, it could not be looked upon as part of his estate. 2do, That the father's liferent, though by reservation, gave him only right to use the wood for necessary uses, and repairing of houses, but not to sell the same, unless the wood had been in use to be disposed of, and divided by yearly haggs. 3tio, That the lands about Dumfries which belonged to one Rome of Dalswinton, and were apprised from him by his own creditors, and peaceably possessed by them for many years, were not a clear and accessible estate, and so not to be considered as a part of the condescendence. Here there was a great presumption that old Mouswell's right to these lands was but a trust in his person. 4to, That the debtor having been a man of considerable fortune when his debts were contracted, he ought not to have secured his younger children's provisions upon his lands, by a reservation in the eldest son's infeftment of fee, and left his creditors to seek after moveable debts due to him most part whereof are now desperate, without any neglect of the creditors, who having only the benefit of a clause of relief as cautioners, could not do diligence against any part of the debtor's estate, till they were distressed several years after his decease; besides, some of these debts are confirmed by the children in their father's testament, and uplifted; and these bonds not being a visible and accessible estate, the Lords preferred the creditors, and reduced the children's right, in so far as it did prejudge anterior creditors. See Process. See Reduction of Decreets.
