John Murray v. Neilson of Chapel, and Lanirk of Ladylands
Date: 27 January 1728 Case No. No 10.
An apparent heir, liable passive upon behaviour, having purchased an apprising upon his predecessor's estate, while the legal was current, and conveyed the same to a singular successor; the same was found effectual in a conpetition, and not extinguished confusione in the apparent heir's person.
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In a competition betwixt these parties, about the lands of Conheath, Neilson and Lanirk's titles, being apprisings deduced against the lands of Conheath, bought in by Elizabeth Maxwell the apparent heir, and conveyed from her to these purchasers; it was objected against the apprisings, That they were extinct confusione, being bought in by the apparent heir, during the legal, after she had behaved as heir, liable thereby to all her predecessor's debts, and to these apprisings among the rest; whereby there came to be a confusion of debit and credit in her person.
To which it was answered, That apprisings were never thus understood to be extinguished; witness the noted case of an apparent heir, possessing by virtue of an adjudication led upon his own bond, which was never understood to be an extinction, though a stronger case than that in dispute. See Lord Stair, l. 1. t. ult. § 9. in med. And though such a possession, since the act of sederunt 1662, did infer a passive title, nevertheless the adjudication was a good title, whereupon to possess the estate, and even to dispose upon it by sale, which could never be quarrelled by a succeeding heir. And indeed the same thing continues to be law still, even after the act 1695; for that law only makes the heir possessing upon such a diligence passive liable to the debts, but does not annul the diligence. And the true reason of all is, that confusion is not a proper extinction, but only a temporary suspension, while the debit and credit continues in the same person; for though the same person can support the legal characters, at the same time, both of creditor and debtor, so as to preserve the debt from an ipso jure extinction; yet because one cannot pay to or discharge himself, the debt must stand suspended as to execution, during the time the same man is both debtor and creditor. But whenever the confusion ceases, the debit and credit falling in different hands, the suspension ceases at the same time; the debt revives, and has its force as before the suspension. And to this purpose Lord Stair, in the forecited place, expresses himself, “If by different successions,” says that noble anthor, “the debtor and creditor should become distinct, the obligations would revive, as in many cases may occur; and so confusion is not an absolute extinction, but rather a suspension of obligations.”
