Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Auchinbreck
v.
Robert Campbell

Date: 27 February 1685

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In the process of mails and duties, at the instance of Auchinbreck, as having acquired right to an apprising against his father, against the tenants, compearance was made for his father's creditors, who alleged, That the comprising was redeemable from the pursuer, the apparent heir, for the sums he paid for it. Answered for the pursuer, The act of Parliament about the redemption of apprisings acquired by apparent heirs, concerns only the taking right to expired apprisings, which is presumed to be done in defraud of creditors; whereas the pursuer's apprising was acquired in cursu of the legal, and several years on't are yet [to] run. Now, there being in this case a remedium ordinarium, by using an order, there is no necessity to recur to the extraordinary remedy of the Act of Parliament; and creditors have no more prejudice by the apparent heir's having the right, while it is redeemable, than if it were in the person of a stranger. Replied for the creditors, The presumption of a fraudulent contrivance, for the benefit of apparent heirs, holdeth in the case of current as well as in the case of expired apprisings; for there might have been partial payments of the apprising acquired, the instructions whereof the apparent heir, being master of all the papers, may suppress; and it will be difficult for creditors to prove that the apparent heir gave not the full value for the apprising, otherwise than by his own oath. It might also fall out, and be industriously ordered, that the apparent heir should not take right to an apprising, till it were near upon the expiring. Besides, the case of creditors, who are in damno vitando, is more favourable than that of an apparent heir, who is in lucro captando. And,—July 21, 1671, Sir George Maxwell of Pollock against Kirkonnel,—the Lords found an apprising acquired by an apparent heir, during the legal, redeemable, within ten years from the time of acquiring, for what was truly paid for it, if it stood in his person till the legal were expired. The Lords found the apprising redeemable from this apparent heir, upon payment of the sums he truly gave for it.

Page 11, No. 49.