The Debt must be anterior to the Disposition. - What understood to be an Anterior Debt.
John Douglas, Taylor in Edinburgh, v. William Cochran of Ochiltree
Date: 22 July 1714 Case No. No 132.
A party being held as confessed upon an account referred to his oath, the Lords found his eldest son liable to pay the debt as lucrative successor, by a disposition posterior to the account, though prior to the decree.
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In a process at the instance of John Douglas, as having right from William Douglas his father, against William Cochran of Ochiltree, as lucrative successsor to the deceased Sir John Cochran his father, for payment of L. 1315 Scots due by Sir John to the said William Douglas by an unsubscribed taylor-ac-compt about the year 1679, and contained in a decreet obtained against him, for not compearing to depone in July 1713 upon the said accompt, that it was resting owing;
Answered for the defender; Seeing the passive title of lucrative successor makes the heir liable only for such debts as were contracted before the date of the disposition in his favour, he cannot be liable to pay the debt pursued for; because, 1mo, The disposition, though posterior to the said accompt, is prior to the constitution of the debt by the said decreet against Sir John, which only made him debtor, and cannot operate retro to make the father as debtor before, for by the decreet he is not held as confessed upon the time of furnishing the articles of the accompt, but only that he was really owing the same; and the obligement arising a re judicata jurata, or from the parties being held as confessed, is considered as a transaction or original obligation or contract betwixt the parties; so that it cannot be drawn back, 1. 26. D. De jurejur; 2do, Esto the decreet were probative of the time of furnishing, it cannot be probative against the defender, to whom Sir John was denuded by an anterior disposition, and as to whom it was res inter alios: For though he had granted bond to any creditor, declaring it to be for a debt due to him before the disposition to the defender, that would not have been respected as lawful probation to subject him to the debt; else it were easy for a father, having disponed his estate in his son's contract of marriage, to make the disposition elusory at his pleasure, by granting bonds under his hand; declaring himself to have been debtor some time before the right granted to his son: And a decreet, holding Sir John as confessed, upon a presumption of law, cannot have greater effect against the defender, than if his father had owned it under his hand.
Replied for the pursuer; 1mo, As the furnishing was before the disposition to the defender, so the obligation to pay was also before, arising from the time of completing the contract, which must be distinguished by suing implement thereof by process. It is true, were the competition with a lawful creator before obtaining of the decreet, something might be said; but, when the debate is with a lucrative successor, who is considered as eadem persona with his predecessor, tempus contractus is only regarded. And if Sir John had been liable only in a conditional obligation, during the pendency whereof he had disponed his estate to his son, it will not be disputed but that existente conditione the son would be liable; since, in that event, retro pura censetur obligatio. How much rather is he liable in the present case, where the obligation was simple from the time of the furnishing.
The Lords found the defender liable for the debt pursued for.
