Scottish Court of Session Decisions

Subject_1 TRUST.

Beaton of Kilconquhar
v.
M'Kenzie of Fraserdale

Date: 21 June 1737
Case No. No. 36.

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One purchased an estate, and took a conveyance to his author's disposition with procuratory and precept.

While a prisoner, in consequence of being engaged in the Rebellion 1715, his friends, in order to protect his estate, infeft his author.

Having returned home unattainted, he contracted debts, and conveyed to certain creditors the precept in security, ignorant that it had been exhausted. He died bankrupt; and these creditors applied to his author, from whom they obtained infeftment.

Other creditors brought a reduction, on the act 1696, of this act of the author, as a trustee who had alienated after his constituent had become bankrupt. The defence was, that the author was no trustee. The conveyance did not denude him of his personal right. He might have infeft himself, and made a second conveyance in favour of another. He was entitled to exercise his power in favour of certain creditors of the bankrupt. It does not alter the case, that infeftment was taken in his name, without his knowledge. This does not constitute him a trustee for the common debtor. He cannot be put in a worse situation without his consent, therefore might lawfully use the infeftment taken in his own name, as if taken by himself for his own behoof.

The Lords found the infeftments granted by the author not reducible upon the act 1696.—See No. 207. p. 1150. See Appendix.