Simulation in a disposition by a debtor to his creditor, whence inferred.
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A disposition of the furniture of a house being made by a debtor to his creditor upon the 16th of May, of which, notwithstanding the debtor continued in the possession till the 8th of August, when the disponee took the furniture into his possession; and another creditor having, upon the 2d of August, and before the disponee attained the actual possession, done diligence by horning against the debtor; and, upon the 10th of August, two days after the disponee had attained possession, arrested in the hands of the disponee; in a forthcoming upon this arrestment, wherein a reduction of the disposition was repeated, the Lords “found the disposition simulate retenta possessione, and reduced and decerned in the forthcoming.”
The argument for the disponee was, That though rights cannot be effectually granted after even the inchoate diligence of another creditor; yet, being granted before diligence is inchoate, they may be completed after it is inchoate; and that, therefore, the disposition being prior to the horning and arrestment, was preferable thereto, although not completed by possession till after the horning. To which the answer was satisfying, That the disposition being once supposed simulate at the date of the creditor's horning, it could not, by the act of attaining possession on it thereafter, become effectual in prejudice of the intervening horning.
Fol. Dic. v. 4. p. 127. Kilkerran, (Presumption.) No 2. p. 426.
