A disposition bearing, both in the procuratory of resignation and precept of sasine, this clause, that the receiver should be obliged to pay all the disponer's debts, contracted or to be contracted, was found to import only a personal obligation on the receiver to pay these debts, and not to affect the lands disponed.
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The Lord Ballantyne being creditor to the deceast Lord Preston in the sum of L. 10,000, he intented action of reduction against Robert Dundas of Arniston, of a disposition granted by ———— Preston, son and heir to the said deceast Lord Preston, wherein he did insist upon the reasons following, viz. That the disposition was granted by the said Preston, within year and day after the defunct's decease, to the prejudice of the pursuer, who was a creditor of the defunct's contrary, to the 24th act, Parl. 1. Cha. II. It was answered, That the foresaid act of Parliament did only discharge voluntary dispositions by the apparent heir, whereby he satisfied his own debt, and prejudged his predecessor's creditors, but that this disposition was for an onerous cause, viz. for payment of certain of the defunct's creditors, mentioned in a back-bond granted by the defender's father; and it was clear, both by the rubric and statutory part of the act, that it was only a remedy against the creditors of the apparent heir, but that it did not stop the apparent heir from disponing of the defunct's estate, for payment of his creditors, such as he thought fit. 2do, That the defender's author, viz. the said ———— Preston, was not apparent heir in these lands disponed, he being infeft by virtue of a disposition from his father before his death; which infeftment, albeit it did bear, that the son should be obliged and liable to pay all his father's debts, contracted and to be contracted, sicklike as if he were served heir to the father; yet the son had thereby a qualified fee of the said lands, and neither needed, nor could be served heir to the father therein; and that it Was so, was evident, seeing the foresaid fee did preclude all the King's casualties; so that neither ward nor marriage could fall by the death of the father. The Lords did not determine the first point, whether the apparent heir might dispone, for the satisfaction of any of his father's creditors within the year; but they found, that the defender, being infeft before his father's death upon the foresaid disposition, was in fee of the saids land, and so was not apparent heir therein.
Difference of these Expressions, “Obliged to pay the Father's Debts,” and “With the Burden of the Father's Debts.”
The pursuer's second reason of reduction was, That the qualification contained in the foresaid disposition, viz. That the son should be liable, and obliged to make payment of all the father's debts, contracted or to be contracted, being inserted, both in the procuratory of resignation and precept of sasine, was real, and did affect the lands disponed, although transmitted to the defender, who was a singular successor. It was answered, That the conception of the clause was but personal upon the son, being conceived in these terms, that the son should be obliged, and found liable for the father's debts, sicklike as if he had been served heir. The Lords found, that the disposition not bearing to be with the burden of the father's debts, although the clause was repeated both in the procuratory of resignation and precept of sasine, yet it did import no more than a personal obligement upon the son to pay his father's debts, but did not affect the lands in the defender's person, who was a singular successor.
Fol. Dic. v. 2. p. 66. P. Falconer, No. 101. p. 70.*** Fountainhall reports this case.
1684. December 18.—The question betwixt Lord Ballenden and Dundass of Arniston, about Sir Robert Preston's estate, was decided on Pitmedden's report The Lords found Ballenden's inhibition null, served on a general charge to enter heir, because the debt was not specially condescended on in the general charge; though there was a summons after for payment on the said charge, wherein the said debt was liquidate and specific.
1685. November 19.—The debate between Lord Ballehden and Dundass of Arniston, mentioned 18th December 1684, being reported by Pitmedden, the Lords found, that John Preston was not in the case of an apparent heir, but a qualified fiar, under the provisions and obligations contained in the disposition made to him by his father, and so (notwithstanding the 24th act of Parliament 1661) he might sell and dispose on his lands within year and day of his predecessor's death, and that the disposition was not qnarrellable on that head, the son being always infeft on the said disposition before his father's death; and found the provisions and obligations to pay his father's debts, albeit repeated in procuratories and infeftments, are but personal against John Preston the fiar, and not real against the fee.
1686. February 16.—The Lord Ballenden's reduction against Preston and Arniston being debated in the Inner house; the Lords adhered to their former interlocutor, (vid 18th December 1684) finding the inhibition null, quoad the L. 300 Sterling bond, not expressed therein, because the leiges by such a general inhibition could never be certiorate what their debtors are owing, nor know how to contract with them. But as to that point, whether John Preston could dispone within year and day of his father's death in favours of some creditors, and not of others, though by a former interlocutor (19th November 1685) the Lords had found he might, being a qualified fiar, yet they demurred on it now, and ordained informations to be given in thereanent; because the fee given him by his father bore with the burden of all debts contracted, or to be contracted, and that he should be liable in the same way as if he were to enter heir.
The third point represented against Arniston's disposition was, that it was from a nephew to an uncle without adequate causes; that by his posterior back-bond he had gratified some of the creditors to the prejudice of others who had done diligence; which was found unlawful, as Stair observes, 8th January 1669, Newman, No 2. p 880.; 24th July 1669, Crowford, No 234. p. 1196.; and B 1. T. 10. This point was referred to the Auditor.
The fourth reason of reduction was, that the lands were distincta tenementa lying discontigue, and yet Arniston's sasine was only taken at the manour-place of Gourton, and so could extend to no other, unless they proved an union, dispensation, or erection, into a barony; and which was found relevant.
1637 November 23.—The Lord Ballenden's reduction against Dundass of Arniston, Stobs, and John, Preston's other creditors, mentioned 16th February 1686, was reported, by Edmonston; and the Lords thought the reason relevant on the act of Parliament 1621, that Arniston could not assume personal creditors before Ballenden, nor prefer any debts paid by himself since the disposition, but only those to which he had right at that time; and therefore preferred Ballenden, who had inhibited, the rest, though his inhibition was found null quoad one of his debts. There was cited for Ballenden, this decision from Stair, Newman, No 2. p. 880.; and Crowford, No 234. p. 1196. The words of the interlocutor were: The Lords found that Arniston by his back-bond could not prefer one creditor of Preston's to another but conform to their diligence; but that as he might have received payment of all his own sums, so he might prefer himself as to all debts due to himself at the time of the disposition of the lands of Preston, or at the time of the disposition of the lands of Auchindinnie, which were both anterior to his back-bond; and therefore sustain the reason of reduction at my Lord Ballenden's instance against Stobs, and the other creditors, therein called, founded upon Ballenden's prior diligence; and in respect thereof prefer him to them, notwithstanding of the preference given to them by the foresaid back-bond; and ordain the Lord Ballenden to be ranked accordingly.
