Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
George Robertson, Writer in Edinburgh, v. Dame Anna Houston, and the Lord Justice Clerk, her Husband
Date: 13 March 1707 Case No. No 65.
A personal bond, granted by an apparent heir, sustained as an active title in a reduction of deeds that might affect the defunct's estate, the pursuer completing his title by adjudication upon a special charge before he could insist.
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George Robertson, writer in Edinburgh, as creditor to the deceased Mr James Hamilton of Bangour, and now to John Hamilton, his son and heir, raised a reduction and declarator against Dame Anna Houstoun, and the Lord Justice Clerk, her husband,, for his interest; concluding, that the pursuer had good right to remove all debts or deeds that might affect the means or estate of the deceased Lord Whitelaw, her last husband; and that the Lady having vitiously intromitted with her deceased husband's goods and gear, all obligements granted by him to her ought to be declared extinct by confusion; and that she ought, as vitious intromitter, to make payment to the pursuer of the sum contained in his bond, and to pay all the debts, and relieve the heir thereof.
Answered for the defenders; No process at the pursuer's instance; because he produces nothing but a simple bond, granted by the deceased Bangour, apparent heir to the Lord Whitelaw, his uncle, which could never be the title of such a reduction and declarator, till an adjudication be led thereon against the granter, as lawfully charged to enter heir to his uncle; For Bangour himself could not have insisted in such a pursuit without being served, and multo minus is it competent to his personal creditor.
Replied for the pursuer; Bangour the debtor might pursue declaratorie for removing any debt whereby his uncle's heritage might be affected, especially at the instance of a party aliunde liable to debts of the same kind. And any personal creditor may, by way of declarator, prevent a feared danger, and save the needless expenses of adjudication, charters, infeftments, &c. May not a creditor, who has only used inhibition, reduce rights that may affect his debtor's estate? Yea, a conditional creditor may, before the condition is purified, assert his right; so, 25th November 1669, Creditors of Balmerino contra Lord Coupar, No 25. p. 3203. it was found, that creditors, even of an apparent heir, might, upon personal bonds, insist ex capite lecti. In a case since the Revolution, betwixt Sir John Hall of Dunglass and Sir William Sharp, (see Appendix.) process of warrandice declaratorie was sustained before eviction and distress. Was not process sustained at the instance of an apparent heir, not served, for declaring the lands he was to succeed to free of the predecessor's debts? July 1680, Lady Margaret Cunningham contra Lord and LadyCardross, see Title to Pursue. And such reductions are always sustained at the instance of personal creditors upon the act of Parliament 1621.
Duplied for the defenders; Law and form require, that people be not put to unnecessary trouble of exposing their writs to any that have not a right equally good in form at least; therefore, even an adjudication is no sufficient title to force production of rights whereon infeftment hath followed: And no real right can be reduced or declared against, except upon a real right. And if an apparent heir could pursue reductions and declarators of real rights, without establishing a title thereto, the service of heirs would be needless. And the defenders would find this inconveniency by it, that an absolvitor in their favour could not prove res judicata against remoter heirs, who still might serve heir to the Lord Whitelaw, and so shun the effect of res judicata against the preceding apparent heir: Therefore, titles must be established, that the contradictor be habile; 11th February 1635, Muir contra Muir, voce Tite to Pursue; 21st June 1671, Leslies contra Jeffrey, No 20. p. 3998. The answer to the instance betwixt the Creditors of Balmerino and Coupar is plain, for apparent heirs, as such, have the privilege to reduce death-bed deeds to their prejudice; seeing their simple consent, though not entered, excludes all reduction at the instance of them or their successors; which privilege is not to be extended to other cases. As to personal creditors upon the act of Parliament 1621, their privilege is founded on a particular statute; and reductions ex capite inhibitionis are founded in law; besides that the inhibition, in some measure, affects the subject.
Triplied for the pursuer; Though adjudication cannot force production of rights completed by infeftment, yet a naked adjudication is, of itself, a sufficient title to reduce even rights completed by infeftment, when produced.
The Lords sustained the pursuer's title, he completing the same by an adjudication, before he can further insist; and, in the mean time, stopped procedure in the process.
Thereafter, 20th March 1707, the defenders craved that the Lords would explain their foresaid interlocutor, by declaring that nothing more was intended thereby, than that the pursuer should not be put to further expense and loss of time, in raising a new process; and that the citation is not sustained as to other effects that may, perhaps, afterward occur in the process, viz. as an interpellation against the defender, to hinder a posterior edict or confirmed testament, to cover a prior intromission from vitiosity; for that, it is no new thing to sustain citations ad fundandam litem, which have been repudiated as to other effects, as in declarators of non-entry.
Answered for the pursuer; It is needless and incompetent, in this state of the process, to desire the Lords' answer to queries: For, whatever debate may arise in the course of the process, as to the particular effects of the citation, that comes in most properly and naturally, when any such effects are insisted on by the pursuer; it not being the Lords' way to determine points upon supposed cases.
The Lords declared, that the allowing process to go on at the pursuer's instance, he completing his title, is only to be understood for carrying on the process without any new citation; and that the citation, as to other effects, can have no force but from the completing of the title, which makes the pursuer an idoneous contradictor.
