Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. VIII.
Of Second Gratuitous Alienations of the same Subject.
William Wilson Merchant in Edinburgh, v. the Lord Saline
Date: 24 January 1706 Case No. No 67.
Found in conformity with Fraser against Phillorth, No 62. p. 938.
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William Wilson having right by progress to a base infeftment of annualrent out of Alexander Short's estate, expede in May 1661, but never clothed with possession, pursued reduction against the Lord Saline, of a disposition granted to him by the said Alexander Short, his brother-in-law, completed by a public infeftment in February 1662; as being a presumed gratuitous deed to a conjunct person in prejudice of the pursuer, a prior lawful creditor. The defender produced a bond for 20,000 merks, granted to him by the granter of the disposition, of the same date with it, which he contended was a sufficient onerous cause to support the disposition; as it would have been a good title to adjudge or use any other real or personal diligence upon; and differed from the case where the onerous cause is specified in a disposition, upon which narrative no execution could have followed. Now, if a bond of borrowed money, granted to a conjunct person, cannot be reduced upon the act of Parliament as gratuitous, 28th June 1665, Monteith contra Anderson, (infra h. t.) but proves its onerous cause by the narrative; Why may not a disposition of lands be granted by one conjunct person to another in satisfaction of such a bond? 2do, Albeit the disposition had been gratuitous, it must subsist; because the disponer had aliunde a sufficient estate to pay his debt; 10th Nov. 1680, M'Kell contra Jamieson and Wilson, No 47. p. 920.
Replied for the pursuer: The 20,000 merks bond cannot be obtruded as the onerous cause of the disposition, in respect they are of the same date, and yet have no relation to one another; but might have been made use of separately against the debtor and his estate. There is again a manifest disparity betwixt a bond of borrowed money in the ordinary way of commerce, and a bond granted for so great a sum, at the same time with a disposition, containing the bulk of the granter's estate; but no material difference betwixt a disposition containing the onerous cause in the narrative, and one of the same date with a latent bond for a great sum; except that these two concurring, argue more fraud in the contrivance. The decision 1665 is not to the purpose; seeing the bond Was not there craved to be reduced as made inter conjunctas personas, but as being granted after Anderson's diligence, which was justly repelled, for that horning doth not hinder a man to contract debt, 2do, A gratuitous right cannot prejudge another's special right of the same subject, more than a posterior donation could prejudge a prior; for that the prior donatar, by the warrandice implied in his right, is a creditor as to the subject gifted; and his debt could not be rendered ineffectual by a voluntary gratuitous deed; multo magis ought the reduction to proceed at the instance of the pursuer, a lawful and onerous creditor. The decision 1680 doth not meet the point; for the pursuer doth not insist to have the disposition in favours of the defender reduced upon the head of bankrupt, but upon this reason, That the annualrent disponed to him out of certain lands, by Alexander Short, could not be prejudged by any posterior gratuitous disposition, though first completed by a public infeftment.
The Lords found the disposition to the Lord Saline Was presumed gratuitous, and the 20,000 merks bond not sufficient to instruct the onerous cause thereof. And repelled the allegeance of a separate estate, in respect of the pursuer's prior infeftment. See Proof.
