Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. XVI.

Price of Heritable Subjects.

Thomas Ker, Goldsmith in Edinburgh,
v.
Janet Schaw, Relict of Mr James M'Micken, Minister of the Gospel at Hownam, and Patrick Home, of Fulshotlaw, now her Husband, for his interest

Date: 7 July 1714
Case No. No 92.

The Lords found the executor liable for the price of a house sold to the defunct, conform to a minute of sale unperfected, tho' the heir might claim, the disposition to the house to be extended in his favour.

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Thomas Ker and the deceased Mr James M'Micken having entered into a minute of sale, whereby Thomas sold to him a dwelling-house in the Parliament Close, and obliged himself to deliver to him, his heirs and assignees, an extended disposition betwixt and Whitsunday then next to come 1712, and Mr James obliged him, his heirs and successors, to pay to Thomas, his heirs or assignees, the sum of 4000 merks as the price: Mr James died before the said term of Whitsunday; whereupon Thomas Ker raised a process against the said Janet Schaw his relict, and Patrick Home, her present husband for his interest, for payment of the price, as representing the defunct, upon this ground, that she, the said Janet Schaw, had, after the minute of sale, accepted of a general disposition from him for love and favour, of all goods, gear, houshold plenishing, debts, sums, and others whatsoever pertaining to him, with a special assignation to several debts, by virtue whereof she de facto had put to her hand and intromitted, in regard the pursuer had consigned a formal disposition of the house, with absolute warrandice, and all clauses necessary, to be given up to the heir, who is called pro interesse in this process, that he might see the disposition is rightly done, and take it up, which is implement of the minute upon the pursuer's part.

Alleged for Janet Schaw, 1mo, Her acceptance of the foresaid disposition from her husband, could not make her liable for his debt, the same not being granted with the burden of debt, though it might be reduced upon the act 18th Parliament 1621, as in prejudice of the granter's creditors; seeing a man's being owing some debt cannot otherwise have the effect of an inhibition, to hinder a friend from accepting a donative from him without danger of incurring a passive title. 2do, Suppose she were liable to make the subject of the disposition furthcoming to any creditor, yet the same being only moveable, could not be affected with the pursuer's debt; because that ariseth only from the performance or offer to perform a deed to be granted in favour of the heir, who, therefore can only be liable for the debt thence arising, viz. the price of the house disponed, or offered to be disponed to him.

Answered for the pursuer, 1mo, By the minute, the defunct's heirs and successors being obliged to pay the price, the representatives, whether heirs, executors, or others, whom the law reckons such, as having a gratuitous disposition omnium bonorum, are liable in the option of the creditor; and the disposition omnium bonorum states the relict in the same case as if she had been executrix, the same being of a testamentary nature, which she could not enjoy without paying the debts; for there is a great difference betwixt this universal conveyance, which being donatio mortis causa, of a testamentary nature, subjects the user to debts at least in valorem, and a special right which might more properly afford reduction upon the act of Parliament 1621, if in the terms thereof pre-judicial to anterior creditors. 2do, The obligement to pay the price is a proper debt, upon the executry, whereof the heir might crave relief, and at the same time take the benefit of the sale, and seek the disposition to be extended in his favour. For, as in the case of Major Chiesley, No 91. p. 5531. the price was found to belong to the executors of the deceased seller, though the heir was bound to implement and dispone; so a paritate, executors of a defunct purchaser are bound to pay the price, as was decided Baillie contra Henderson, No 14. p. 3564. So that Janet Schaw is the proper person to have been called in this process.

The Lords repelled the defences proponed for Janet Schaw, and found her liable, in valorem, of the subject disponed to her by Mr, M'Micken her first husband.

Fol. Dic. v. 1. p. 372. Forbes, MS. p. 75.