Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. IV.
Gratuitous Alienations.
Jean Weems and David White, her Husband, v. Ann Murray
Date: 24 July 1706 Case No. No 42.
A disposition omnium bonorum, by a wife to her husband, bearing to be for love and favour, and for onerous causes, was not sustained in competition with an anterior obligation for an annuity, granted by the disponer to his aunt.
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Isobel Forbes, daughter to the deceased Mr Arthur Forbes, being creditor to Sir Patrick Murray in 1000 merks per bond, granted an obligement to Anna and Martha Murrays, her two aunts by the mother side, for payment of L. 40 yearly: And thereafter having married the deceased James Hamilton, goodman of the Cannongate Tolbooth, she made a disposition to him omnium bonorum, and particularly assigned him to the said 1000 merks bond; but, by a posterior disposition, she assigned to the said Anna Murray her wearing cloathes. James Hamilton transferred the said bond to Jean Weems, his second wife, in implement of the minute of contract passed betwixt them pro tanto, who, with the concourse of David White, her present husband, pursued for the same. Compearance is made for Anna Murray, who claimed preference to the sum, upon this ground, That she was executrix qua creditrix decerned to Isobel Forbes, and had confirmed the same as in bonis of the defunct; whereas Jean Weem's right depended upon the validity of the disposition made by Isobel Forbes to James Hamilton, which was null and reducible upon the act of Parliament 1621, as being a disposition omnium bonorum by a wife to her husband, in defraud of creditors.
Alleged for Jean Weems:—That Anna Murray, as executrix creditrix to Isobel Forbes, can have no right to the sum; because the defunct; was denuded in her own lifetime. Nor is a disposition by a wife to her husband reducible upon the act of Parliament 1621, as gratuitous, and to the prejudice of lawful creditors; seeing a husband is liable in quantum lucratus. Yea, Isobel Forbes, after granting of the foresaid disposition to her husband, had a sufficient funds to answer all her, debt, and particularly the debt acclaimed by Anna Murray: In so far as by a subsequent disposition, she disponed to her her wearing apparel, which was more than sufficient for her payment; and must be imputed in satisfaction of the debt due by the disponer, since debitor non præsumitur donare. And Anna Murray cannot reduce Isobel Forbes's disposition to James Hamilton; Jean Weems's cedent, because she Anna Murray granted a general discharge to him of all she could ask or crave, and consequently of this obligement.
Answered for Anna Murray:—The disposition to James Hamilton being gratuitous and omnium bonorum, is plainly fraudulent and null by exception, in competition with Anna Murray, an anterior lawful creditor. Nor doth the brocard debitor non præsumitur donare hold in many cases; as where the writ bears to be a donation; or the thing disponed is not a liquid debt of the same kind; or is remuneratory; or where the presumption of a gift is stronger than that of payment, November 13. 1679, Anderson contra Anderson, (Stair, v. 2. p. 705. voce Presumption, donatio non presumitur.); June 16, 1665, Cruickshank contra Cruickshank, (Stair, v. 1. p. 282. voce Presumption, donatio non presumitur.) All which exceptions concur in this case: In so far as the disposition to Anna Murray expresseth a donation in these words, She leaves, gives, and bequeaths: The subject disponed is wearing apparel, which is not a liquid debt; and it is a remuneratory donation mortis causa to an aunt who attended the disponer the time of her sickness, and, at the bearing of all her children, and who had suffered loss by her father. The discharge granted by Anna Murray to James Hamilton, cannot include the obligement in her favours for the L. 40 of annuity: Because, the general clause is not to be extended beyond the subject antecedently therein-narrated, viz. The decreet recovered against him for the Wearing cloathes disponed, and value thereof. Nor does Anna Murray pretend this to be a debt due by James Hamilton, but only by Isobel Forbes.
Replied for Jean Weems:—The disposition by Isobel Forbes to James Hamilton bears not only for love and favour, but also for divers onerous causes: And the true onerous cause thereof was, That he had sustained the onera matrimonii; and Jean Weems hath the sum transmitted to her for a most onerous cause, viz. In satisfaction of the provision in her contract of marriage with him. The cited decisions are not to the purpose; for in that of Anderson contra Anderson, the quality of the parties oath, by which the debt was constitute, the smallness of, the sum, and the circumstances of parties were the rule. And the decision betwixt the Cruickshanks was founded on these specialties, The defunct was rich and had no children, and the pursuer was poor, and his nearest of kin; and the disposition reserved a faculty to alter, The disposition again was burdened with the payment of sums to some other friends, and bore expressly in satisfaction of debts due to them, but did not declare so as to the debt due to the pursuers.
The Lords sustained the obligement in favours of Anna Murray, and found, That Isobel Forbes's disposition to her husband cannot compete with her right. And found the discharge by Anna Murray to James Hamilton doth not concern this case, but only the decreet therein-narrated; because these were debts of a different kind. And found, That the assignation, by Isobel Forbes, of some body-cloaths to Anna Murray, is not to be considered as payment or satisfaction, but a mere donation. And therefore preferred Anna Murray to the annualrents. See Presumption. See General Discharges, &c.
