An eldest son is taken bound in a disposition to pay his father's debts, per list. In the list is mentioned a certain sum as provision to younger children. The children, in an action, found on this disposition as their active title, containing a burden and provision in their favour. They are barred from attempting to make the defender liable to a greater extent.
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Hary Elphingston of Calderhall, in the contract of marriage of Sir Thomas Elphingston his son, dispones his lands of Calderhall and Kersie in favours of Sir Thomas, and the heirs-male of the marriage; which failing, to his heirs-male of any other marriage; which failing, to the heirs-male of Hary's body,' &c. And the contract contains a clause, in favours of the daughters of the marriage, to this effect:
“And because the lands are provided to Sir Thomas's heirs-male, in this or any other marriage; which failing, to return to Hary and the heirs-male of his body;”
in which cases, or any of them, the daughters of the marriage will be debarred; therefore Sir Thomas obliges him, and his heirs-male, and of tailzie; succeeding to him in the said lands, to pay to the daughters 25,000 merks, at the terms of payment therein expressed.
Robert Allan, who married one of the daughters of that marriage, and as assignee by her and the other daughters, pursues the Lady Airth and her Husband, for his interest, as heir to Charles Elphingston her brother, who was heir served to Richard Elphingston her father, who was the heir-male of the said marriage, and to whom Sir Thomas disponed the lands mentioned in the contract, per præceptionem.
It was alleged, That the disposition by Sir Thomas to Richard was granted upon his undertaking the payment of his father's debts, contained in a list, extending to lb. 20,000, and further, with the burden of 11,000 merks, for the provision of the children, and with the burden of two liferents; which together did amount towards the whole value of the lands disponed. And the said disposition was granted by Sir Thomas, and accepted by Richard, with the burdens foresaid allenarly, &c. no otherwise. And accordingly Richard paid the debt; and the pursuer, as having right from the younger children, did pursue Charles Elphingston, his son and heir, for the 11,000 merks of provision, wherewith the disposition was burdened, and obtained a decreet, or payment and security, conform; and cannot now insist for any further provision against the defender, as representing her father, who accepted that disposition; because it bears an express quality and provision, that the same was granted and accepted with the foresaid burdens allenarly and no otherwise.
It was answered, That the accepting of the disposition was præceptio hæreditatis, which is an universal passive title; and if a father, by inserting such qualities and provisions, could disappoint creditors, it would be no difficult matter to defraud them; therefore all such contrivances are reprobate: and whatever the pursuer obtained by virtue of the former decreet, should be allowed in part of the 25,000 merks.
It was replied, The defender does acknowledge that such conditions and provisions, betwixt a father and his apparent heir, cannot prejudge lawful creditors pursuing upon their bonds, or other instructions of debt; nevertheless, in this case, the pursuer cannot infill to make the defender liable, as representing Sir Thomas, by her father's accepting with the said quality in the disposition, otherwise than in the terms, and with the conditions and quality thereof; because he, as assignee by the daughters, did formerly make use of that disposition, and obtained the benefit and advantage of the quality therein contained, libelling, that thereby Richard had undertaken the payment of the 11,000 merks to the younger children, with annualrent, and by his acceptance was bound to pay the sum. And the specialty and difference of the case lies in this, that a creditor pursuing upon his bond as his active title, and recovering a disposition per præceptionem to instruct the passive title, cannot be tied by any affected quality in the disposition; and therefore, if the daughters had pursued on their father's contract, and overtaken the defender as representing, by accepting that disposition per præceptionem; though the first pursuit had been but for a part, they might have pursued for the rest, without regard to that quality or restriction; but, seeing they did libel upon and produce the disposition to Richard as their active title, because it did contain a provision to the younger children, and have obtained the benefit of it, they cannot now object against the other conditions and qualities of it, that it was accepted, as well as given, with the foresaid burdens allenarly.
It was replied, The pursuer did not, at that time, know of the contract of marriage, and provisions therein contained, and so could not be understood to pass from the benefit thereof; for no man is presumed suum jactare.
The Lords found, That the pursuer having founded upon the said disposition as his active title, and as containing a burden and provision in favours of the younger children, his cedents, he cannot now insist to make the defender liable for any greater sum for her father's accepting of that disposition, containing the quality foresaid, without prejudice to the pursuer to insist against the defender upon any other passive title, or to affect any other means and estate of Sir Thomas, for payment of the superplus of the daughters' provisions, as accords.
