Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XI.
The Onerosity of Provisions in Favour of Children.
The Laird and Lady Blackbarony v. The Lord and Lady Pitmedden, and Montgomery of Magbiehill
Date: 10 February 1715 Case No. No 89.
A person, after contracting a debt, and after diligence had been done upon it, grants a bond of provision to his daughter. Found relevant to presume that the debtor was insolvent at the time of granting the bond of provision; while no effects are condescended on for payment of onerous debts prior thereto. Therefore the bond of provision postponed.
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Hunters of Hagburn, elder and younger, were debtors to John Peter of Whitslaid in upwards of 3500 merks, and horning and caption raised thereon; and John Peter assigned these sums to Elizabeth his daughter, Magbiehill's grandmother. And after this debt was contracted, and diligence so done, Hagburn elder made a bond of provision, (afterwards corroborate by his son) in favours of Catharine Hunter one of his daughters for 3000 merks; young Hagburn having fallen into difficulties, conveys his estate to Mr William Wallace his brother-in-law; but the price not having been applied for payment of creditors, Elizabeth Peter, and William Montgomery of Magbiehill her husband, obtained a decreet in 1662 against Mr William Wallace, as the person who had unduly, acquired their debtor's estate; whereby he is decerned to pay to William Montgomery, or Mr William Lauder, (who had acquired right to Catharine Hunter's bond, and was father to the Lady Pitmedden) the sum of 2500 merks, with the current annualrent; or to such of them as by multiple poinding to be raised by him, should be found to have best right; the Lady Blackbarony, daughter to Mr William Wallace, with concourse of her husband, having called the Lord Pitmedden and the present Magbiehill his grandfather's representative in this multiple-poinding.
It was alleged for Magbiehill, That the ground of his claim was a due and onerous debt, constitute long before the Lord Pitmedden's bond of provision granted by the common debtor to his own daughter, after all lawful diligence was used against him for payment of Magbiehill's debt; which, as such, is still preferable to a gratuitous and voluntary bond of provision.
Answered for Pitmedden, That non apparet that the common debtor was bankrupt when he granted the bond of provision to his daughter, and two charges of horning, whereon no denunciation followed, could not make him bankrupt: So that the bond of provision fell not under the act 1621.
Replied for Magbiehill, That as an onerous creditor, and having done diligence against the common author, he only pleaded a preference to the Lord Pitmedden's gratuitous bond of provision, long subsequent in date to the contracting Magbiehill's onerous debt and diligence, which gives him a legal preference without necessity of reducing the Lord Pitmedden's bond of provision on the act of 1621: And Hagburn being bankrupt, would be found sufficiently instructed by the decreet 1662. Nay, Magbiehill's present claim makes him bankrupt, so long as the Lord Pitmedden does not prove that he had sufficient estate for payment of that and all his other debts. And the Viscount Stair, and all our other lawyers agree, that such bonds of provision are not at all onerous, being granted after the competing creditors debts, though corroborate by the apparent heir.
The Lords found, that it is relevant and presumed that the common debtor was insolvent the time of granting the bond of provision, since no effects appear for payment of the onerous debts prior thereto: And therefore found, that since the debts in Mr William Montgomery's person and diligences thereon, are prior to the bond of provision in the person of the Lord and Lady Pitmedden, that therefore the said Mr William is preferable to the said Lord and Lady Pitmedden
For Pitmedden, Horn & Seton.Alt. Sir Ja Nasmyth.Clerk, Roberton.
Bruce, No 64. p. 77.
