Delivery when presumed made, and for whose Behoof.
Daniel Simpson Writer v. Euphame Finlay and John Colvill her Son
Date: 16 November 1697 Case No. No 235.
A father granted a disposition to his son, kept latent for 17 years. Adjudication for a debt afterwards contracted was preferred.
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Newbyth reported Daniel Simpson writer against Euphame Finlay and John Colvill her son. Quintin Finlay dispones some tenements to his son, and failing him by decease to the said Euphame his daughter in 1676; but no infeftment is taken thereon till 1693, by the space of 17 years after the disposition. But long before the infeftment, he borrows money upon bond; the right whereof coming into the said Daniel's person, he adjudges the tenement, and pursues for mails and duties. Compearance is made for the said Euphame and her son who alleged, The father was bona fide denuded by the disposition, before the contracting these debts, and the same was perfected by infeftment before Daniel affected the lands by his real right of adjudication; and so the disposition could not be said to be in defraud of debts which were not then in being; and a father may, by bonds of provision, give portions to his children, if he be solvent and responsible, for these and all his other debts, at the time of his granting thereof. Answered for the creditors, That this disposition being latent and not so much as registered, but concealed for 17 years, and in favour of children, (though in implement of their mother's contract of marriage) it can never compete with true and onerous debts, which though contracted after the said clandestine disposition, yet long before it was any ways made public; and rights made in favours of children are not presumed to be delivered evidents of the date they bear, without some adminicle to astruct it; and by the current of decisions the Lords do not regard such latent alienations made by parents to children, whether the creditors’ bonds be prior or posterior thereto; as in the cases of Street and Mason, 27th July 1669, No 111. p. 1003; Reid contra Reid, 4th December 1673, No 33. p. 4925; Graham contra Roome, 24th January 1677, voce Provision to Heirs and Children; and Napier of Tayoch contra Irvine, 17th June 1697, Ibidem. There was another allegeance for Daniel, That the contract of marriage providing 4000 merks, was fulfilled to the children aliunde without this disposition; and the clause of conquest could not sustain it, for that is always to be understood deductis debitis. The Lords, in this case, preferred the creditors to the children, without entering on that last allegeance.
Fol. Dic. v. 2. p. 155. Fountainhall, v. 1. p. 794.
