An accepter of a gratuitous disposition to an estate cannot use a preferable right purchased by him, to the prejudice of debts charged on the estate, farther than he paid for the right.
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James Purdie of Hairburnhead had a process raised against him, at the instance of the children of Samuel Purdie, his brother, whose curator he had been, and thereon was inhibited, and a decreet was finally pronounced against him for L. 6000 Scots. He afterwards granted an heritable bond, on his lands of Westforth, to James Wilson of Gillies for 400 merks, to which his second son Thomas signed as consenter; and the inference drawn from this, and what followed by Mr Wilson, is, that he had then come to a resolution to make Thomas Laird of Westforth, and that the 400 merks should be a burden thereon; but Thomas Purdie, the defender in this cause, denied that any such consequence could be drawn, and took notice, that the bond did not bear to be with his advice and consent; but only in the testing clause, he being called to be a witness, was designed consenter; and if his eldest brother had been present, his consent would have been adhibited in the same manner.
However, some time after, James Purdie disponed to his son Thomas the lands of Westforth, under the burden of 2400 merks to his younger children, reserving his own liferent, and power to alter; and Thomas accepted of this disposition, by obtaining a charter from the superior, and taking sasine thereon.
He afterwards purchased in the debt due to the children of Samuel Purdie, or part of it, which had been secured by inhibition, and thereupon adjudged the lands of Westforth; and this step he alleged was necessary for him to take, not only to save his estate from eviction at the instance of the inhibiters, who were clearly preferable to his disposition, but also to get the better of some extravagant deeds done by his father to his prejudice, in favour of the younger children, and which he had power to do by the reservation in the disposition, viz. increasing their provisions to 4000 merks, for which he gave them an heritable bond on the lands of Westforth, and also a tack of the said lands for nineteen times nineteen years, at the rent of L. 100 Scots, by colour of which rights they, on his death, took possession of the estate, retaining the tack-duty for the interest of their provisions.
Thomas insisted in a process of mails and duties on his adjudication, in which the Lords, 19th June 1741, ‘ Found that he could not use the debt purchased by him from the Representatives of Samuel Purdie in prejudice of the 2400 merks, to which he was subjected by his acceptation of the disposition from his father.’ Which interlocutor being acquiesced in, became final and James Wilson having appeared for his interest, and founded on his heritable bond, the Lord Ordinary, 21st January and 13th February 1744, ‘Found that Thomas Purdie's acceptance of a gratuitous disposition did not bar him from taking the benefit of any other right or diligence purchased by him, affecting the lands disponed, in competition with the other creditors of the disponer, nor oblige him to communicate the benefit of such purchase to these creditors.’
Pleaded in a reclaiming bill; That the petitioner's case was pretty similar to that of the younger children. By the disposition he was taken bound to pay their provision, and this debt, to which he is a consented, was at the time charged on the estate. It could not be doubted the disponer intended he should pay it; and it was contra fidem of the transaction between his father and him, to purchase in a claim in order to defeat it. He was in the case of an heir cum beneficia; and though it might be observed, that an heir cum beneficio is personally bound, yet an executor is not so, who is bound also to communicate eases. A superior, purchasing the gift of his own ward, could not extend it farther against his vassal than to the amount of the purchase money; and the Lords found, 10th March 1636, Crawford contra Lord Murdiston, No 10. p. 7756.; that a vassal's right having fallen by the forfeiture of his mediate superior, the gift of forfeitry purchased in by the immediate superior accresced to the vassal; for, though it was doubted if the absolute warrandice, contra omnes mortales, did extend to guard against forfeitry, so as to furnish any action against the immediate superior, yet seeing the gift was acquired by himself, he behoved to communicate the benefit of it to his vassal.
The foundation of these determinations was, that when two parties are concerned in a subject, one of them purchasing in any right thereon is presumed to do it for their mutual interest, and is therefore obliged to communicate it, as the superior was found obliged to do to his vassal, though he was not bound in warrandice.
Answered; That were it not to avoid entering into a tedious account, the respondent needed not to contest the point of law, since, as he had only agreed with two of the three representatives of Samuel Purdie, one third of that debt was still standing out, for which the estate was liable to be evicted; and, as the younger children possest it a very long time for their patrimonies, he behoved to be allowed to state these rents; and if he were only to state what he truly paid for the debt purchased in, it would do more than exhaust the value of the subject.
In point of law, it was allowed, That the petitioner's bond was preferable to the respondent's gratuitous disposition; but, on the other hand, it was contended, that the debt secured by the inhibition was preferable to the bond, which the respondent was not bound to pay. He was not heir to his father, neither was he author to the petitioner in this debt, so as to be debarred from purchasing in any right that might compete with it. The provision to the younger children was an express burden upon the grant in his favours and; he, by acceptance thereof, personally bound; but the disposition was nowise burdened with this debt; and, with regard to his consent in the bond, besides what might be urged from the manner of its being adhibited, Spottiswood, under the title, Warrandice, gave this general rule, Nemo propter solum consensum de evictione tenetur; and to the same purpose Craig expressed himself, 1. 2. Dieg. 4. In omnibus evictionibus, &c.; and so it had been often decided, 23d February 1667, Earl of Errol contra Hay, No 80. p. 6523.; 8th January 1668, Forbes contra Innes, No 81. p. 6524.; 27th January 1681, Stewart contra Hutchison, No 15. p. 7762.
The fallacy of the petitioner's argument consisted in not distinguishing the case of a consenter from that where the rule of jus superveniens applied, which was only where the person was bound in warrandice.
The Lords found, that Thomas Purdie the son, as consenter to the heritable bond, could not claim or state more than the compounded sum at which he purchased the debt secured by the inhibition from the representatives of Samuel Purdie.
It was urged on the Bench in favour of Thomas Purdie; That his father having, posterior to the disposition, done such deeds as were virtually a total recalling thereof, he was to be considered in the same case as if he had never accepted it.
Act. H. Home.Alt. Lockhart.Clerk, Forbes.
D. Falconer, v. 1. p. 76.
