If probative of its Onerous Cause against Creditors and Donatars of Escheat.
John Rule v. Andrew Purdie
Date: 22 February 1711 Case No. No 458.
A disposition by one brother to another, bearing, to be for security of certain sums due by bond, was found astructed by production of the bonds.
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James Robison, merchant in Dumfries, grants a bond to John Rule there for L. 800 Scots, who thereon adjudges some houses belonging to Robison. After the bond, but prior to the adjudication, James dispones these houses to his brother, and he conveys them to Andrew Purdie, his nephew. A competition arises for the mails and duties of the tenements, betwixt Rule and Purdie. Rule repeats a reduction on the act of Parliament 1621, that Purdie's author's right is from a brother, and to a nephew, and so being inter conjunctos can never prove its onerous cause, to the prejudice of Rule, whose debt was contracted long before the said simulate disposition. Answered, The narrative of the disposition, it is confessed, cannot per se prove its onerous cause; but for astructing thereof, he produces bonds granted by James Robison to his brother John, and which are mentioned as the cause for granting the disposition; and so it depending on an antecedent onerous cause, can never be quarrelled as gratuitous. Replied, If this method were once sustained, it would be a very short and compendious way to frustrate that excellent law; for wherever a debtor designed to gratify his relations and cheat his creditors, he had no more to do but to grant bonds to his nearest friends, bearing the receipt of money, and then make a disposition, narrating that these prior bonds were the onerous cause of the disposition, by which artificial stratagem the said useful law would be rendered totally useless, and a door opened to infinite frauds and tricks. Duplied There may be cases where violent presumptions may infer design of defrauding lawful creditors, as if the bond be granted but some weeks before the disposition, or the term of payment is made shorter than ordinary, or from its being kept latent; there a creditor in such a bond may be required to prove the onerous cause; but here no such thing can be pretended. And though Stair, B. 1. T. 9. §. 11. & 15. and Sir George M'Kenzie in his Observations on the said act 1621, thinks it extends to bonds, yet the clause runs singly against dispositions; and it would lay an embargo upon all commerce and trade betwixt relations, if it were not sufficient to support a disposition, that I produce bonds anterior thereto; for, to necessitate me to prove the onerous cause of that bond, the production of one before it would be liable to the same exception, quod eodem laborat vitio, and so there should be an absurd progressus in infinitum; for how can he per rerum naturam instruct otherwise than by bonds, unless it were to prove actual numeration and down-telling of money, which by our law is not probable by witnesses? and a bond was found sufficient to adminiculate a disposition betwixt two brethren, in a case not so strongly circumstantiated as this, 8th January 1669, Newman contra the Tenants of Whitehill, No 27. p. 897. Next, there might be some pretence to quarrel this disposition, if it were offered to be proved that Robison was bankrupt and insolvent at the time of the disposition, or became such by making it; but it was so far from it, that he continued a trading merchant, and kept shop several years after; and he being only cautioner for one Lockhart, he had his relief against him, which was in ejus bonis, and added to his solvency. The Lords found Robison's disposition sufficiently instructed as to its onerous cause by the production of the anterior bonds to which it relates, unless Rule will offer to prove he was insolvent, or holden and reputed bankrupt at the time he granted these bonds, which are the cause of the subsequent disposition. Some thought it hard that Robison's making a show of wealth in lands and goods, with conscience, credit and honesty, should ensnare a simple credulous neighbour, by drawing his money into his net, and then make a disposition of his lands to his own brother, depending on a bond which is itself posterior to Rule's debt, who was his lawful creditor before the contrivance made up betwixt the two brethren. The Lords saw evident inconveniencies on both sides; but after balancing the arguments ab incommodo, they sustained the foresaid disposition, with the quality of his solvency abovementioned at the time thereof.
Fol. Dic. v. 2. p. 252. Fountainhall, v. 2. p. 640.
