How and to whom competent to insist upon this Passive Title.
Andrew Houston of Calderhall v. Sir Alexander Maxwel of Monreith
Date: 28 January 1715 Case No. No 188.
A defence of vitious intromission, proponed by an heir, sustained to extinguish moveable debts, but not heritable debts, in the person of a vitious intromitter.
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The infeftment of the lands of Cultreoch being conceived to heirs whatsomever, Sir Alexander Maxwell agreed with the four sisters of Cultreoch younger, daughters to Cultreoch older, apparent heirs to both, and obtained from them a disposition to the lands of Cultreoch, with a procuratory to serve them, and to all heritage or moveables whereunto they could succeed as heirs to their father or brother; upon which Sir Alexander intromitted with writs, heritage, and moveables, and paid the debts.
Sir Alexander having taken out brieves for serving his authors, compearance was made for the heir-male, who produced a bond of tailzie by old Cultreoch to his son and his heirs-male, whereupon resignation had been made, and infeftment expede after Cultreoch's death; and thereupon the heir-male being preferred, Sir Alexander pursued the heir-male for payment of the debts, who repeated a declarator that the debts were extinct in his person, in as far as he was vitious intromitter.
It was answered, Vitious intromission is not relevant to be alleged for the heir-male; because that passive title operates only in favours of creditors, as was lately found in the case of John Ewing contra William Rowan, (See Appendix). 2do, Et seperatim, The heir-male had no pretence to object against heritable debts in the person of the vitious intromitter; because an executor confirmed paying heritable debts has relief against the heir. Our law favours creditors so far, as to subject all representatives, whether in heritage or moveables, to the payment of debts; and again provides relief from one representative against another, according to the nature of the debt. An executor is liable to relieve the heir of moveable debts secundum vires inventarii: E. contra, the heir is bound to relieve the executor of heritable debts; and a vitious intromitter is only hæres or prohæres in mobilibus; but in respect of unwarrantable intromission, the law presumes that the moveables were sufficient to pay all the debts, and does not allow any proportion betwixt the creditors' debts and the intromission; but as an executor having a full beneficial executry, would nevertheless recur upon the heir for heritable debts, so must a vitious intromitter have the same benefit.
It was replied, That the creditors have indeed access to pursue either vitious intromitter or heir, the executor secundum vires, and a vitious intromitter in solidum, and without all relief; and if the creditor pursue the heir, it may indeed be questioned how far the heir might recur against a vitious intromitter, whether in solidum or valorem. In the case of Ewing against Rowan, it was found, that the heir could not pursue the vitious intromitter for relief. But this is most certain, that the defunct's moveable debts being stated in the person of a vitious intromitter, the same became extinct ipso facto. If it were not so, there would be no hazard in vitious intromission, where the defunct had an heritable estate; and vitious intromission being oft-times by persons who have access to meddle without witnesses, and being always without authority, inventory, or record, it is seldom possible to prove either quantities or value; and therefore the law has most justly introduced a presumption juris et de jure, that the moveable were sufficient to pay the debts, and consequently the same became extinct ipso facto. 2do, There is not any law or precedent to distinguish heritable from moveable debts in this case, which cannot but have happened frequently.
“The Lords found, That a vitious intromitter was entitled to pursue the heir for relief of heritable debts; but sustained the allegeance of vitious intromission to extinguish moveable debts in the person of the vitious intromitter.”
