A person disponed to his wife the whole moveables, with the burden of his debts, and settled the liferent of a house on her. Having paid privileged debts, nearly to the extent of the moveable; she took an affignation in name of a trustee, to a debt of L. 50, upon which she adjudged the house. Found entitled to do so.
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David Annandale merchant in Edinburgh, settled the liferent of a house on Christian Key his wife, in the event of her surviving him, and also executed in her favour a disposition of his moveables, expressly burdened with payment of all his debts. After his death, Key intromitted universally with his moveables, yet so, that after payment of the privileged debts due by the deceased, her superintromissions appeared not to have exceeded L. 2 Sterling.
Key the widow was afterwards married to Peter Brown wig-maker in Edinburgh, the defender, and they, during the existence of the marriage, paid to Priscilla Handaside the sum of L. 50 Sterling, which the deceased Annandale owed her by bond. Instead of taking receipt for that sum, they made Handaside grant an assignation of it to a trustee for their use. In consequence of this assignation, the trustee adjudged the house above mentioned which had belonged to Annandale.
After the death of Key, William Annandale the pursuer, brother and heir of David Annandale, having raised a reduction of the assignation, and of the adjudication which followed upon it, pleaded, That, as Key, by her acceptance of the disposition made in her favour by her husband Annandale, became burdened with the payment of all his debts, she and Brown her second husband must be understood to have paid Handaside's debt in compliance with this obligation; and that debt, being thus extinguished, cannot now subsist in the person of Brown, (who derives right from Key) so as to affect the heritage of Annandale.
Answered for the defender Brown; Although action had been brought against Key herself, she would not have been burdened in consequence of the disposition by her first husband beyond the amount of the subjects with which she intromitted, as was found in the case Thomson against the Creditors of Thin, 28th December 1675, observed by Stair, No 6. p. 3593. Action indeed lay against her as vitious intromitter, but it could not in law have affected her husband, might have been avoided by her confirmation, was extinguished by her death, and in no event would have benefited the pursuer, who is not creditor, but heir of Annandale.
“The Lords repelled the reasons of reduction, and found that the defender was entitled to take an assignation to the bond in his own, or in a trustee's name.”
Reporter, Justtce-Clerk.Act. A. Pringle.Alt. Ferguson.Clerk, Murray.
Fol. Dic. v. 4. p. 45. Fac. Col. No 18. p. 36.
