Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. I.
Nature and Distinctions of each.
Mr Hugh Murray Kinninmound, Advocate v. Mrs Elizabeth Rochead, &c
Date: 6 November 1739 Case No. No 4.
Where the conventional terms of paying annualrents on an heritable bond are Candlemas and Lammas, the annualrent due at Candlemas, before the predecessor's decease, belongs to his executor.
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*** The first part of this case relates to the subject of Sect. 28.
Lewis of Merchiston, and Blair of that Ilk, &c. being debtors by a personal bond to Sir James Rochead, for L. 800 Sterling, they, (after their affairs went wrong) executed several trust-dispositions of the subjects belonging to them to certain trustees, for behoof of their creditors specially therein recited; amongst whom was Sir James for his debt, who, alongst with the other creditors, assigned their debts to the trustees, in order that they might lead an adjudication in their name, of the subjects belonging to their debtors, and make over the same to the purchasers. This assignation contained the following proviso: “That Sir James's granting thereof to the trustees should no ways hurt or prejudge him of any diligence then already used upon the said bond, or that he should thereafter use thereon against the persons of the debtors, or others liable in the same, or any other lands, &c. that do or shall appertain to them, till he is completely satisfied and paid of the sums before written; these presents being only granted by me to the said trustees, in order to make up sufficient rights to the purchaser of the said lands, for security of the said purchaser.” In consequence of this trust-right, the trustees led an adjudication, and sold part of the subjects in Sir James's lifetime; and, after his death, this question occurred betwixt his heirs and executor, Whether Sir James's acceding to the trust-right, and the adjudication deduced in consequence thereof, rendered the bond wholly heritable, so as to devolve to his heirs? or if it still remained moveable, as not falling under the assignation to the trustees, with respect to what part of it is not recoverable out of the trust, as Sir James's proportion of the same?
For the executor it was contended; That the trust-rights could not render any of the debts heritable, though they were heritably secured, because it is not in the power of the debtor, by any deed of his, to alter the nature of the debts without the creditor's consent; and it is plain, that wherever debtors embarrassed denude of their heritable subjects for security and payment of their debts, as not only in trust-rights, but likewise where prisoners for debt dispone their estates for their creditors' security, in order to be entitled to the act of grace, a debt may be heritably secured, and yet remain moveable as before the security. Since, then, trust-rights by themselves cannot render heritable such debts as were originally moveable, let us examine if what followed thereafter, on the part of Sir James, can have that effect. With regard to which, it is clear, from the nature of the assignment, that the sole intent thereof was, “that an adjudication should be led in the name,” of the trustees, of the several subjects of the trust-right, so as they might be enabled to convey the same to the purchasers for security of their respective purchases, to the extent of the sums to be received by the creditors as their proportion of the price, and no further; as this is the case, it is the very same as if Sir James himself, without leading any adjudication, had received his proportion from the purchasers, or trustees on their account, of the price of the subjects, and granted an assignment of his bond, with absolute warrandice as to the sum received, and with power to the purchasers or trustees for their behoof, to lead an adjudication of the subjects for security of their respective purchases; surely such an adjudication led upon the bond would not render it heritable as to the remainder still unsatisfied. Now the case in question is in effect the same. Sir James conveys this debt to the trustees to a limited effect, “that an adjudication may be led thereon in their name,” to be made over to the purchasers in security of their purchases, and with power to bind Sir James in absolute warrandice as to the proportion of the price to be received by him; and, at the same time, reserving the debt to all other intents and purposes, which is no more than conveying the debt by way of anticipation to the purchasers, with absolute warrandice as to the sums received, reserving the bond as to the remainder; and with power to the purchasers to lead adjudication upon the same, so far as conveyed for security of the purchasers. Whence it is plain the debt was never intended to be heritably secured in Sir James's person, or for his behoof, by leading the adjudication, further than to the extent of the price of the subjects.
It was answered for the heirs; That no such anomolous right occurs in law, which is at the same time heritably secured, and yet moveable to all other intents and purposes. If a debt is heritably secured, it must necessarily descend to the defunct's heirs; nor is it possible for his executor to make up a title to it. Neither is the instance of an heritable security granted by the debtor, without the creditor's consent, an example to the contrary; because if the creditor refuse to accept of it, the debt cannot be said to be heritably secured, and consequently there is no place for its descending to the heir; but if the debt can at all be said to be cloathed with an heritable security, the descent to the heir is an unavoidable consequence, seeing he only can succeed in the real right, and the debt must go along with it as the jus nobilius. Nor is a formal acceptance of the creditors necessary for this purpose; if the creditor knows that the additional security is granted he is presumed to accept of it. But, in the present case, there is no occasion for this disquisition, as Sir James's acceptance of the trust securities is not left to presumption or conjecture, but is plainly proved by his concurrence with the trustees in every step of their management, by keeping their meetings, by assigning the debts in question, and, in a word, doing every thing which any other creditor did who acceded to the trust-right, consequently these trust-rights must be considered in the same view as if they had been granted directly to Sir James himself; in which case, there could be no doubt the debt thereby secured would be heritable to all intents. And as to the argument, That no more can be deemed heritable than to the extent of what may be drawn by the subjects still undisposed of, it was answered, That, when a debt is heritably secured, however small the subject is over which the security extends, that the whole is thereby rendered heritable, since every part thereof is equally secured upon land, though the subject may be too small to pay the whole; because, as the heritable security applies equally to the debt pro indiviso, it must of consequence be wholly reputed heritable; and it is inconsistent that it should be both heritable and moveable at the same time; or that the nature of it should depend upon any after chance of the debt being recovered in one manner or another. And with regard to the argument, That the assignation was only intended for an additional security to the purchasers, and to be considered as their right and evident, but not at all to alter the nature of Sir James's debt, it was answered, 1mo, It is not by the adjudication that Sir James's debt was rendered heritable, but by the disposition and infeftment in security, taken by trustees for his behoof, a considerable time before the adjudication was led, and by which the debts were rendered heritable, though the same had never been deduced, 2do, The adjudication is not rightly represented, when it is considered as a security only belonging to the purchasers, and not to Sir James; for it did not belong to the purchasers till it was made over to them upon the sales of the several subjects; till then, it was in the person of Sir James's trustees, which is equal as if it had been in his own; and though he empowers them to make over the same to the purchasers, that is no more than what every creditor is bound by law to do.
Another point occurred betwixt these parties, which was this: In some of the heritable bonds due to Sir James, secured by infeftment, the annualrent was taken payable at two terms in the year, Candlemas and Lammas. Sir James died the 1st of May 1737, consequently the executor pleaded, That the half year's annualrent that was payable at the Candlemas preceding, if not the annualrents to the day of his death, fell under his executry. In support whereof, it was observed, That annualrent secured by infeftment, though payable termly, must either be due de die in diem, and so the executor's right will go to the day of Sir James's death, or they must only be understood to be due termly, when they are exigible, and then the conventional terms that were passed before his death, fell under his executry. Annualrents, which are termed fructus civiles, in whatever manner they are secured, grow due from day to day, though they are not exigible till the term covenanted. And there is nothing better known in law than the distinction betwixt diem cedere and diem venire, by the first, the obligation becomes due, and is transmissible; so that since the annualrents become due by the use of the principal sum, and forbearance of exacting it, every day's use must produce a new day's interest. This infallibly holds in moveable bonds; and there does not appear any solid reason why it ought not to take place in annualrents constituted by infeftments; but if those shall be deemed only due termly, then it would seem past doubt, that all the by-gone terms due at the defunct's death fell under his executry; these were sums exigible by the defunct himself; and whether the terms of payment were, by the agreement of parties, or those called legal, cannot alter the case; for still the term's annualrent was passed, and must be regarded as a sum in the defunct's own hands. Answered; The annualrents were not to be computed de die in diem, but to be regulated by the legal terms of Whitsunday and Martinmas, in the same way as the rents of the lands, since there is no reason why that rule, which has been wisely established for preventing many disputes which would otherwise happen anent the conventional terms, ought to be departed from. The reason why annualrents or annuities are made payable at bye-terms, as Candlemas, Lammas, &c. is to answer the terms the tenants pay their rents; and as those conventional terms of payments are justly disregarded in the question of the heritor's succession, as little ought they to have any influence in the succession of the real creditor, who has a partial interest in the lands, conform to the decision, Trotter against Rochead, No 12. p. 2375.
The Lords found, that the bond in question was rendered heritable, and remained so at Sir James's death, except in so far as he was entitled to draw of the sums therein contained, out of such of the subjects as were sold and disposed of by the trustees before his death; and found, that the annualrents due at Candlemas, preceding Sir James's death, do belong to, his executors.
C. Home, No 131. p. 220.
*** See the report of this case by Kilkerran, Sect. 28. h. t.
