Baillie of Torwoodhead v. The Representative of Edward Ruthven, and Hugh Wallace Cash-keeper
1686.
March. Case No. No 64.
An apprising of a defunct's estate, purchased in by the heir of line, was found redeemable by the heir of entail, who succeeded to the lands, though it was pleaded that the act concerns only apprisings of lands to which the purchaser may succeed as heir; and that the act is in favour of creditors only.
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In a declarator at the instance of William Baillie of Torwoodhead, nephew and heir of tailzie to James Lord Forrester, against Mr Ruthven his son and heir of line, for redeeming some apprisings against the said Lord Forrester, acquired by the defender, upon payment of the sums he truly gave for them;
Answered for the defender; The act of Parliament making apprisings redeemable from apparent heirs, concerns only apprisings of lands to which they might succeed as heir; whereas the lands in the apprisings, acquired by the defender, are tailzied, and such as he, the heir of line, is absolutely stranger to. 2. The heir of tailzie is not properly a creditor of the defunct, and so has no interest to redeem the apprisings acquired by his apparent heir of line, who cannot be considered an heir quoad these, more than intromission with the defunct's writs of the tailzied lands, would infer the passive title of behaviour against him.
Answered; The design of the act of Parliament is to secure creditors against the carrying away of their debtor's estate by acquisitions made by his children and representatives; and if it were sustained only as to the redemption of apprisings of lands to which the acquirer was alioqui successurus, then he might easily be eluded by the heir of line's purchasing apprisings of the tailzied estate, and the heir of tailzie's acquiring apprisings of what is untailzied, whereby the defunct's creditors would find themselves utterly defrauded. 2. The pursuer must be considered as a creditor to impugn every thing that may carry away the tailzied lands from him. And the parallel does not hold between the passive title of gestio pro hærede, which makes an universal representation, and the effect of the foresaid act of Parliament, which only precludes apparent heirs a lucro captando, and allows them full satisfaction of what they truly paid out.
‘The Lords found the heir of line liable to denude in favours of the heir of tailzie, conform to the act of Parliament.’
In this process the Lords found apprisings acquired by the apparent heir's factor, to be in the same case as if they had been taken in the constituent's name, then a pupil. 2. Found it relevant, that an apprising was in the defunct's charter-chest, either blank, or with a right thereto, although it was filled up with the name of Hugh Wallace the factor, and now in his custody; and he offered to prove that it was in his hands at the debtor's decease; yet the Lords would not prefer him to the probation, but allowed a conjunct probation upon this speciality, that the charter-chest having come in the possession of the curators and his factor, he might have had access to the apprising, and taken it out.
Fol. Dic. v. 1. p. 360. Harcarse, (Comprisings.) No 319. p. 78.
