Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION II.

Lucrative Successor post contractum debitum.
Subject_3 SECTION II.

How far the Disposition must be onerous, to elide the Passive Title.

Henry Gillespie, son to the deceast Edward Gillespie Merchant in Edinburgh, and Rachel Watson his spouse,
v.
Patrick Gillespie and his Spouse, and Mark and James Carses

Date: 21 November 1705
Case No. No 126.

An obligation in a contract of marriage to provide the conquest to the heirs of the marriage, is not an onerous cause to protect the heir to whom the estate is afterwards disponed, from being liable as lucrative successor.

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The deceast Edward Gillespie, merchant in Edinburgh having, after disponing some tenements there to Mark, James, and Janet Carses his grand-children, disponed the same to Henry Gillespie, his eldest son and apparent heir, who obtained himself infeft, and thereafter granted a new corroborative disposition to his said grand-children, who were thereupon infeft, in regard, the first disposition in their favours wanted a procuratory of resignation and precept of sasine; a competition for mails and duties arose betwixt Henry Gillespie and Patrick Gillespie, who married the said Janet, and her two brethren.

Henry craved preference upon this ground, That although the disposition in favours of the Carses be anterior to his, his infeftment was prior to theirs.

Answered for Patrick Gillespie and the Carses; 1. Edward Gillespie being first denuded by a disposition in their favours, he could not afterwards, in prejudice thereof, grant another right to his apparent heir; which second disposition is reducible as merely gratuitous, without any onerous cause, and cannot hinder their posterior infeftment on the corroborative disposition to be drawn back to the date of the first; 2. Henry, as successor titulo lucrativo post contractum debitum to Edward by his foresaid disposition and infeftment, is obliged to warrant their prior disposition, and therefore cannot impugn it.

Replied for Henry; That in all competitions of real rights, the first infeftment is still preferred; and the date of the posterior sasine cannot be brought back to the date of the first disposition, which contained no precept of sasine or warrant for infeftment: Nor was Henry's disposition gratuitous, since Edward could have been compelled to grant the same in implement of his contract of marriage with Henry's mother, whereby the whole conquest was provided to the heirs of that marriage, and consequently to him: 2. He could not be liable to warrant his father's disposition as successor titulo lucrativo, in so far as the posterior disposition to him had such an antecedent onerous cause as his mother's contract of marriage.

Duplied; However onerous a contract of marriage may be in favours of the wife, it is always gratuitous as to provisions in favours of heirs and bairns, and can never be opposed even to posterior creditors. Nor can it exeem an apparent heir from the passive title of lucrative successor; November 29. 1678, Higgins contra Maxwell; No 125. p. 9795.; February 22. 1681, More contra Fergusson; No 116. p. 9781. Dirleton in his questions, title successor titulo lucrativo, is also of this opinion. 2. Though the disposition to the Carses were gratuitous, yet they are in pari casu with Henry, his disposition being also gratuitous: And in a competition betwixt two gratuitous assignees, the last assignation, though first intimated, is reducible upon the implied warrandice of the first, against future facts and deeds of the same nature; July 15. 1675. Alexander contra Lundy; No 64. p. 940.

The Lords found the disposition made by Edward Gillespie, to Henry, in his contract of marriage, was not onerous as to his interest therein, and could not prejudge the anterior disposition granted by the same Edward in favours of his grand-children the Carses; though Henry's right was first perfected by infeftment; in regard, he as heir or lucrative successor, could not quarrel or impugn his father's deed in their favours, but was liable to warrant the same; reserving to Henry's wife and children after his decease, to debate their interests in the said contract as onerous quoad them.

Fol. Dic. v. 2. p. 36. Forbes, p. 43. *** Fountainhall reports this case:

Edward Gillespie merchant, having two children, Henry, and Marion who was married to Captain Carse brother to Cockpen, and had by him Mark, James, and Janet Carses; and Janet being married to Patrick Gillespie; Edward the grandfather, dispones to the said three Carses, his grand-children, in 1686, some houses in Edinburgh; and thereafter he makes a right of the same houses to his son Harry, who is thereupon infeft in 1699; but the said Edward being induced to adhere to his first deed, which wanted a procuratory or precept of sasine, he renews the same, and grants a disposition in corroboration in 1702, whereupon the Carses, his grandchildren, are infeft; whereon they and Harry Gillespie their uncle, falling to compete for the mails and duties, it was contended for Harry, That though his disposition was posterior to theirs, yet it was first completed by infeftment, three or four years before theirs; and so, as having the first consummate real right, he was clearly preferable, by the 13th act, Parl. 1693. Answered, That Edward being denuded of the fee in favour of the Carses, his grandchildren, he could do no voluntary posterior gratuitous deed in prejudice thereof, especially to his apparent heir, without an onerous cause, and who as heir becomes liable to warrant the first disposition, being successor titulo lucrativo post contractum debitum. Replied, Heritable rights of lands are not validly transmitted by dispositions, till infeftment be taken thereon; and though the Carses had a naked personal right before him, yet he had the first infeftment, which must by all the rules of law give him preference; and the pretence that his right is gratuitous is false, because it depends upon Janet Nisbet his mother's contract of marriage with the said Edward, where the whole conquest stante matrimonio is provided to the heir of the said marriage, which he is; and his father could by no voluntary deed derogate from that clause of conquest, which makes the said Harry's right onerous, and to depend on that antecedent cause; whereas their right is uncontrovertedly gratuitous. Duplied, That Harry's right is still gratuitous; for the conception of the clause of conquest is not to the heir of the marriage, but expressly provided to the bairns to be procreate of that marriage, whereof the Carses' mother was one; and so she and her children jure repræsentationis had as good right to the heritable conquest (though not so of moveables) as he had, and were in pari casu quoad that; and even in such provisions, the Lords have found the parent had the power to arbitrate dispose and distribute the conquest among his children, as they deserved. Thus the Lords decided lately, in Thomas Wylie's children's pursuit against their father, (See Appendix); and such obligements do not exeem the apparent heir from implementing his father's deeds, nor purge the passive title of successor titulo lucrativo, 8th July 1625, Gray*; so that esto the disposition to the Carses be lucrative, so is yours; you Harry having got a considerable patrimony beside this; and wherever a competition occurs betwixt two gratuitous assignees, the last assignation, though first complete, is always reducible upon the implied warrandice of the first, against all future facts and deeds, as was found 15th July 1675, Alexander, No 64. p. 940.; and much more where the second right is to the apparent heir, who is liable in his predecessor's obligement for warrandice contained in the first deed, though incomplete; and though provisions in contracts matrimonial conceived in favour of wives may be

* Gray against Burgh, Dune p. 176, in the Appendix to this Title.

onerous, yet destinations to heirs or bairns are not so, and do not hinder but a disposition to an eldest son makes him successor titulo lucrativo. Vid. 29th November 1678, Higgens, No 125. p. 9795.; and 22d February 1681, More, No 116. p. 9781.; and Dirleton, voce Successor titulo lucrativo. The Lords found though Harry had the first complete right, yet seeing he was thereby heir and successor, he became liable to warrant his father's deed, in favour of the Carses, and so could not quarrel nor impugn the same; and therefore reduced his right, and preferred the first disposition made by Edward to the Carses, his grandchildren, before Harry's subsequent right, though first perfected by infeftment.

Fountainhall, v. 2. p. 292.