Incumbrances affecting the Subject, transacted by the Disponee, cannot be extended against the Disponer, bound in Warrandice, further than to pay the transacted Sum.
George Galbreath v. Widow Gibb
1685.
November. Case No. No 82.
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A woman having procured a gift of bastardy from the Exchequer, was found liable to pay the bastard's debts secundum vires, as an ultimus hæres; and the decreet being extracted, she procured a gift of the bastard's escheat, who died at the horn, and suspended upon that reason.
The Lords found, That the suspender having acquired a right to the goods from the King upon the title of bastardy, and having competed thereon with the creditors, she could not disappoint them, by thereafter acquiring another title to the same goods; and some thought the King was fully denuded by the first gift of bastardy, which habili modo conveyed the goods. The woman was allowed the expenses of the escheat.
Fol. Dic. v. 1. p. 601. Harcarse, (Bastardy.) No 158. p. 35.*** Sir P. Home reports this case:
December.—George Galbreath, merchant in Edinburgh, as creditor to the deceased James Gib, postmaster, having obtained a decreet against Abigail Deans, his relict, as donatar to her husband's bastardy, for payment of the debt; she suspends upon these reasons, That the decreet was obtained against her in absence, and that it was null for want of probation, neither the quantities of the husband's goods nor her intromission being proved, and that she was in the case of an executor, and so could only be liable secundum vires according to the value of the goods intromitted with belonging to the husband; as also, she had obtained a gift of her husband's escheat, and by her back-bond to the Exchequer, she was preferred to the household plenishing, and to as much of her husband's other goods as will pay the funeral charges, house-rents, servants-fees, and other privileged debts. Answered, That the suspender having intromited as donatar to the bastardy, and the debt being constituted against her by a decreet before she had obtained the gift of escheat, and there being thereby jus quæsitum to the charger, as a creditor, the suspender could not, ex post facto, acquire any supervenient right in prejudice of the creditors; that she, as donatar to her husband's bastardy, was liable to pay her husband's debts secundum vires hæreditatis. The Lords found that the debt being constituted against the suspender as donatar, she could not ascribe her intromission to any subsequent title of escheat that she had acquired in prejudice of the charger, and therefore ordained her to depone upon the quantity and species of her intromission, and allowed her to have retention as to the privileged debts, such as funeral charges, house-mails, servants-fees, and expenses of both the gifts of bastardy and escheat.
Sir Pat. Home, MS. v. 2. No 733.
*** P. Falconer's report of this case is No 14. p. 1354, voce Bastardy.
