Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Duchess of Buccleugh v. Hary Scrimzeor of Bowhill
Date: 18 February 1709
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The deceased Mr David Scrimzeor having been, for many years, receiver of the Duchess's rents; and at his death debtor in a considerable balance of £19,000 Scots. And having cognosced the debt before the Commissaries of Edinburgh, her Grace now pursues Mr Hary Scrimzeor of Bowhill, his heir, on the passive titles, for payment, not of the whole debt, but in quantum lucratus by his succession to the said Mr David, the debtor; in so far as,—Mr David having made a disposition of his estate to Mr James Melvill of Halhill, and that deed being quarrellable ex capite lecti,—Mr Hary, for validating and fortifying the said disposition, accepted of 5000 merks, and granted a renunciation of any pretence he had, in favours of the said Mr James Melvill: And the Duchess insisted only for the 5000 merks which he had got for renouncing her debtor's succession, and extended it no farther.
Alleged,—Esto he had got a gratuity for renouncing his interest, the same can never infer a behaviour as heir, since he did not prejudge the creditors, nor, by any positive deed, transmit or convey any thing to which he might succeed jure sanguinis, as heir to the defunct; conform to what the Lords found, 5th July 1666, Scot against the Heirs of Auchinlech.
Answered,—His renunciation was, upon the matter, an effectual transmission and conveyance of the heritage to Mr James Melvill, in prejudice of the creditors: for, the disposition being in lecto, either the apparent heir or his creditors could reduce the same; but this renunciation is equivalent to a consent and ratification. And it is indubitati juris that, the apparent heir's consent validates a disposition made on deathbed: and, if apparent heirs be overtaken on very small intromissions, much more should he be liable, who has got 5000 merks: and it was so found lately betwixt the Creditors of Laurence Ord and John Lightfoot.
Replied for Mr Hary,—He was not bound to dispute, hoc loco, what his renunciation would import, and it would never prejudge the creditors' action of reduction of Mr James Melvill's disposition ex capite lecti: And, by an express decision in Stair, 19th July 1676, Nevoy against Balmerino, they found an apparent heir's getting benefit by a transaction did not make him liable, unless he had done a deed that communicated the defunct's right, and hindered the creditors from affecting it; which cannot be pretended in this case.
The Lords saw this dipped on the establishing and introducing of a new passive title; which is not to be done without great deliberation; therefore they ordained the cause to be heard in their own presence.
