It was the opinion of the Court, that the husband's intromission with the rents of an estate, of which his wife was apparent heir, was sufficient behaviour to subject her universally to her husband's creditors; but it being craved no higher but in valerem, the Lords found the husband liable in to far as his intromission should be proved against him.
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Home of Linthill being creditor to Dickson of Overmains, pursues Phillis Dickson, daughter and apparent heir to his debtor, and William Stewart her husband, on this passive title, that she had behaved as heir, in so far as she had intromitted with the rents of her father's lands, either herself, or her husband in her right of apparency, and so both must be liable. Alleged, 1mo, She was not alioqui successura, seeing she produced a charter of the lands from the Earl of Haddington, superior, to one of her predecessors, providing it to his heirs-male. Answered, This is an old right 90 years ago, and may be changed since; likeas, de facto, the lands being apprised by a creditor, her father acquired in the said apprising, and took it to his heirs whatsomever, which quite alters the first destination; 2do, Yourself granted a bond to a confident, whereon you were charged, and having renounced, adjudication followed, which was the title used in the process of sale, and so makes you liable on the act of sederunt 1662, in Glendonwyne's case against the Earl of Nithsdale, infra h. t.— The Lords repelled the first defence, in respect of the answers. 2do, Alleged, Esto I were apparent heiress et alioqui successura, yet my husband's intromission can never make me liable passive; such titles, cum sapiant delictum, suos duntaxit tenere debent auctores, and being personal, cannot be extended from the husband's intromission to the wife, who may be ignorant and unwilling, that her husband should involve her, and yet cannot hinder it; and this might ruin all heiresses, by binding a passive title on them without their own consent, which will affect them after the dissolution of the marriage, by involving them in vast debts: The wife here cannot be liable, for she did not intromit; and for the husband, he is as little, seeing he is not the apparent heir; for none can be subject to behaviour, but one who can be served heir: And lately in the Earl of Winton's case with one Borthwick, No 66. p. 5327. it being contended, that he having married the heiress of Aldinston, and bought in a comprising, it ought to be redeemable from him, the husband, as if the apparent heir had acquired it; yet the Lords found this was too great an extension of the fiction in law, and that it was not so redeemable from him; see Stair, 19th July 1681, Sir George Monro against the Creditors of the Lord Rae, No 59. p. 5317. And Linthill has taken the wrong method; for he should have charged her to enter heir to her father, and, on her renunciation, have adjudged these rents, as lying in hæreditate jacente, and then pursued the husband as intromitter; but to make it summarily a passive title, were both a novelty and hardship. Answered, If an heiress can evade the passive title, because she does not intromit herself, and her husband sicklike evite it, because he is nor the person that can succeed or behave, by this circular juggling heiresses may impune possess their predecessors estates, and the security of creditors be wholly overturned; for a minor will be liable passive for his tutors' and curators' intromissions; and why not a wife for her husband's, who is her curator in law; and though minors will be reponed, yet not without restoring what was intromitted with; and though the pursuer might plead this to be an universal passive title, yet at present he insists only to make the husband liable in valorem, in so far as he has intromitted, seeing he pretends no other title but as husband; and if they will not pay the debt, then let husbands abstain; else it were a compendious way for heiresses to marry, and defraud their predecessors' creditors; neither are they obliged to run a course of diligence by adjudication, seeing I have this shorter method of fixing it as a plain behaviour; and if you offered to renounce, I would not suffer you, because having immixed, res non est amplius integra. Some of the Lords were clear to find it an universal passive title to make them simply liable; but it being craved no higher but in valorem, the Lords found the husband liable in so far as his intromission should be proved against him; seeing they are una persona in jure, and his intromission in her right must be reputed to be her own intromission, which if it were, she behoved to answer her predecessor's creditors in solidum; and here it was no farther extended than to his actual intromission, and not to make them simply liable.
Fol. Dic. v. 2. p. 29. Fountainhall, v. 2. p. 202.
