[1710] 4 Brn 790
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.
Date: Catharine Leslie
v.
Lauchlan Leslie and his Creditors
9 February 1710 Click here to view a pdf copy of this documet : PDF Copy
Robert Leslie of Southtarry, in his son's contract of marriage with Jean Ramsay, daughter to Balmain, provides them to the sum of 8500 merks, by infeftment in his lands. The husband afterwards disponed this sum to Lauchlan Leslie his brother-in-law, bearing onerous causes; and Lauchlan's creditors adjudge this right from him. Catharine Leslie, being the only child of the marriage, raises a reduction of this disposition on the Act of Parliament 1621, as, inter conjunctas personas, to the prejudice of her, an anterior creditor by the provision in her mother's contract of marriage; and though it bore onerous causes, yet that could never prove, the very writ designing the relation as brother-in-law, and so it must be aliunde proven.
Alleged, 1mo,—You are the granter's heir, and so can never quarrel, being obliged to warrant. 2do,—He was undoubted fiar of the sum, and her right was only a mere substitution and destination, which never hinders disposal. 3tio, We are singular successors; and, esto there had been any fraud betwixt the two good-brothers, we are not partakers in the fraud, but were true, lawful, and onerous creditors to Lauchlan, the receiver of the disposition, and so are plainly in the exception of the Act of Parliament, and have affected his right by adjudication.
Answered,—Esto she were heir of provision, yet she is likewise a creditor; and it is certain a father can do no voluntary gratuitous deed, to defraud or evacuate his provisions-matrimonial; which this must be presumed to be, having turned riotous and debauched, and so easily imposed upon by Lauchlan, his brother-in-law, to dispone this right to him without any onerous cause. And though the Act of Parliament secures purchasers, who, by lawful bargains, on payment of a price, acquire the lands; yet that is not the present case; for they did not lend money to him in contemplation of this right, neither are they purchasers for a price, but adjudgers of his right; and so utantur jure authoris, and can have the right neither better nor worse than it was in his person; and so the presumptive fraud affects them as much as it did him. And on this ground the Lords have reduced such rights: 23d December 1679, Gordon against Ferguson; and 24th January 1680, Crawfurd against Ker.
Replied,—The right, coming to them by a legal diligence, is far less subject to any participation of fraud than if they had been voluntary purchasers. And Sir George Mackenzie, in his observations upon that Act of Parliament, instances the case of one brother's disponing to another; yet, if a third party acquire this right for an adequate onerous cause, it will not be reducible on the Act of Parliament, fraud being only personal, and no vice or lobes realis.
The Lords preferred the creditors, the father being fiar, and assoilyied from the reduction,—the process being at the heir of provision the daughter's instance, who is bound to warrant her father's deed. If it had been a stranger creditor who quarrelled this right, he would have had more to say for himself; or if it had been a competition betwixt children of two several marriages, then the heir of the first contract would have been a creditor to impugn, the provisions in a second, if excessive and immoderate; and so a tack was reduced at a bairn's instance, as contra fidem tabularum niiptialium, in the case of Donald
Fouler, recorded by Stair, 16th July 1672; but where it was betwixt an heir of provision and singular successors, the Lords preferred the creditors, unless it were instructed that they were participes fraudis. The creditors were afterwards put to prove the onerous cause of their author's disposition.
The electronic version of the text was provided by the Scottish Council of Law Reporting