Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Robert Gordon
v.
Creditors of Broughton

Date: 23 June 1739

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[Elch., No. 2, Personal and Real; Kilk. No. 2, ibidem; C. Home, No. 120; Rem. Dec. No. 10.]

The case was this.—A father disponed his estate to his son, and burthened the resignation with his haill debts, contained in a particular list subscribed by both, and ordained that this burthen should be insert in the infeftment following thereon; which was accordingly done. The list referred to was registered in the register of the Council and Session, but was not inserted either in the disposition or infeftments following thereon. Quere, Were these debts real debts?

The Lords found, unanimously, that they were not; but they differed as to the ratio decidendi. Arniston thought that the words in the disposition did not imply a real burthen upon the estate, but only imposed a personal obligation upon the disponee; that the father could never mean to make his debts real which were before personal, but only to bind his son, who had got his estate, to relieve him of his debts.—And it was upon this he founded the decision. But the rest of the Lords were of opinion, that the words, in themselves, did impose a real burthen, but that, in this case, as the debts were not inserted in the disposition or sasine, nor the list referred to registered in the register of sasines, therefore there was no real burthen; because, if it were otherwise, the lands would, in some measure, be exeemed from commerce, and the records rendered useless as to them, because it would be impossible to discover from them what burthens affected the lands; so that no purchaser could safely buy them, nor creditor lend upon the faith of them.