Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. III.
Alienations in favour of Conjunct and Confident Persons.
Blackwood of Pittreavie v. The other Creditors of Sir George Hamilton
Date: 18 January 1749 Case No. No 34.
The narrative of a deed inter conjunctas requires no astruction, after a long lapse of time.
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In the reduction at Mr Blackwood's instance of the decree of ranking of the creditors of Sir George Hamilton, the grounds whereof, Vide 4th January 1749, voce Process; it was inter alia found, “That a bond of relief inter conjunctas not having been objected to till after forty-five years from the date, the user of it was not, after so long time, bound to bring any other astruction of the onerous cause than the narrative of the deed.”
The like is observed by Fountainhall to have been found, 23d December 1692, Spence against the Creditors of Dick, (infra h. t.) where it was above forty years, and that not upon the score of prescription, there being some traces of interruption, but, because after so long time the objection was incompetent; and the like where it was fifty-eight years, 2d February 1711, Guthrie against Gordon, Forbes, p. 492. (infra h. t.)
Fol. Dic. v. 3. p. 49. Kilkerran, (Bankrupt.) No 10. p 56.*** D. Falconer mentions the following particulars relative to the same case:
Blackwood of Pitreavie being reponed against the decreet of ranking, as mentioned in the decision of the 3d instant, (voce Process.) insisted for preference on the heritable bond, upon the estate of Dudhope, granted to Miln of Barnton, disponed by him to Sir George Hamilton, and by him disponed first to certain creditors, with whom the pursuer was now competing; and after to Fleming of Farm, who was first infeft, and whose interests the pursuer had adjuged, upon a bond for 9500l. Scots, granted in 1705 to Pitreavie, by Sir George Hamilton and Sir Archibald Fleming of Farm.
Objected, The disposition to Farm, in relief of certain supposed debts, wherein he was bound for Sir George Hamilton, does not instruct its onerosity, being from a father to his son-in-law, and therefore cannot be effectual against the disponer's prior onerous creditors; especially as by the tenor of some of the bonds, in relief of which it is granted, Farm is bound as principal, and Sir George as cautioner: At least, Farm having bound himself, without being induced by the disposition, which is dated at a distance of time from the bonds, supposing it founded on a true, it had no necessary cause, and is therefore reducible.
The Lords, in regard that there was no evidence that any part of Mr Black-wood's debt was paid, found that the objection, was not competent.
N. B. They further found the onerous cause of the disposition to Farm sufficiently instructed; but that case being involved in facts, is not observed.
