Competition betwixt Sinclair of Southdun and Sinclair in Brabsterdoran
Date: 5 July 1726 Case No. No 39.
An assignee neglecting to intimate during the cedent's life, an executor-creditor of the defunct confirmed the subject as still in bonis defuncti. It was found to be a valid confirmation, and preferable to the posterior intimation of the assignee.
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Sinclair of Southdun, executor-creditor to the deceased James Sinclair, clerk to the bills, confirmed a debt due by James Murray merchant in Leith, and upon this title competed with Sinclair in Brabsterdoran, to whom James Murray's debt had been conveyed by the creditor James Sinclair, but never intimated.
For the executor creditor it was pleaded, That an assignation without intimation, is like a disposition without infeftment; they import equally a personal action against the author, but are by no means a conveyance; the author is not denuded until intimation or infeftment; in demonstration whereof, the author can again assign or dispone the subjects; and the first intimation or infeftment will be preferred, which could not be, were the author denuded by the simple assignation or disposition; for upon that scheme, the second would be a non habente potestatem, and consequently null. The subject therefore remains with the cedent, until intimation by the assignee, conveyable again by his voluntary alienation, and affectable by his creditors.
On the other side, it was pleaded for the assignee, That nothing can be understood as in bonis defuncti, but what belonged to him before his death, what in a strict sense he could call his own, and as such, dispose upon at his pleasure. Now, for this reason, a sum assigned, though there is no intimation, is not in bonis defuncti, the defunct did all in his power by the assignation to alienate; and if the intimation was further necessary, that was the work only of the assignee. In a word, it is inconsistent that a subject be considered as mine, which I have done the utmost to alienate, and which I cannot therefore dispose of, or intromit with, without being guilty of a crime. That intimation is a ground of preference among assignees, makes no argument, for that is in favorem only of the diligent, contrary to the nature of the conveyances; and were the nature of the rights only considered, the first assignation would undoubtedly be preferred. And this seems to be the plain import of the act of Parliament made in 1690, which declares, “That special assignations, though not intimate in the life of the cedent, are good and valid rights and titles; albeit the sums of money therein contained be not confirmed.” For if, notwithstanding such special assignation, the sums of money or goods specially assigned were in bonis defuncti, a confirmation by the analogy of our law would be necessary. In the last place, the decision 27th July 1669, Ridpeth contra Hume, was adduced, mentioned by Lord Stair, l. 3. tit. 1. § 15, No 39. p. 2792.; where this case was determined.
It was answered, That the preference given to the first intimation, is from the nature of the thing; the favour of diligence it cannot be, if it be allowed, that his case is less favourable in the way of diligence, who intimated yesterday an assignation he obtained a twelvemonth ago, than his who got but his assignation this day, and intimated the same moment, and yet the first intimation in all cases is preferred; it can only be, therefore, that the cedent is not denuded until intimation; notwithstanding the assignation, the subject remains in his person, which he can validly uplift or assign, as no assignation had been granted; if, indeed, he use this right in prejudice of the assignee, he will be liable upon the personal warrandice in the assignation, which is all the arsignee can in law affirm; but he ought to reflect, these two are very compatible, a right of property in one's person, and an obligation upon him to transfer that property to another, which he cannot disappoint, without being liable pro interesse. Answered to the argument drawn from the act 1690, Though the subject truly continues in bonis defuncti, notwithstanding an assignation unintimated, it will not follow, that the assignee must be confirmed, the intimation without more, taking the subject out ex hæreditate jacente mobilium, and establishing it fully in the assignee: And in this, an assignation is similar to a disposition or adjudication, upon which infeftment taken after the death of the disponer or debtor establishes the subject, which in the interim was in hæreditate jacente, completely in the person of the disponee or adjudger. As for the decision cited, the circumstances are not the same; there the assignee had got a bond of corroboration, and a partial payment after the cedent's death, which has been always reckoned equal to an intimation. To conclude, the subject in dispute remained in bonis defuncti, notwithstanding the unintimated assignation. The confirmation was the first completed conveyance, taking the subject out e medio; and upon that title, the executor-creditor falls to be preferred.
‘The Lords preferred the executor-creditor.’
Fol. Dic. v. 1. p. 180. Rem. Dec. v. 1. No 87. p. 175.
