In which circumstances intromission does or does not infer a Passive Title. - Action transmits against heirs in valorem only.
William Cumming, and Others, v. Archibald Hart, and Others
Date: 9 March 1756 Case No. No 156.
Creditors who consented to the relict's intromission with the goods of a defunct, after they had been sequestrated by the Commissary court, and received payment of their debts from the relict, were found liable to the other creditors in valorem of their intromissions.
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Alexander Law died suddenly and insolvent. Hart, a creditor, immediately upon his death, preferred a petition to the Commissaries of Edinburgh, setting forth, “That Law had died suddenly; that he owed considerable sums to Hart the petitioner; that there was reason to suspect that his effects might be embezzled, in defraud of him and the other creditors; therefore praying warrant to sequestrate and seal up the defunct's effects for the behoof of all concerned”.
The Commissaries granted the desire of this petition. The goods were inspected, and the warehouse locked up by Smith, an officer of court. Next day Smith inventoried and valued the goods, and took custody of the key.
A few days after, the defunct's relict granted her obligation, with two cautioners, to Hart and the other defenders, that she should roup the effects which had been sequestrated, and apply the price towards their payment; and this obligation, with an inventory, of the goods, was delivered to John Watson doer for the defenders. Watson informed Smith, that the creditors had come to an agreement with the relict, and thereupon got the keys of the warehouse from him and delivered them to the relict. She rouped the goods, and with the price paid off the defenders.
Cumming and other creditors, not parties to this transaction, pursued Hart and others for payment of their debts, upon the passive title of vitious intromission.
Pleaded for the defenders; Vitious intromission is penal and odious; it may not be intended against those who acted bona fide and openly; and the defenders did not secretly take possession of their debtor's goods, but took payment from the relict of their just debt, being prevailed upon by her to save to her and her family the expense of confirmation, &c. as there would be a reversion. The whole transaction with her were openly and fairly carried on; neither she nor they imagining there was any other creditors, and the roup was public. Although Hart applied for sequestration; and obtained it for the behoof of all concerned, yet there was no obligation upon him to go further; he might honestly stop here, and take payment of his debt when offered; and the relict is the intromitter, not the defenders.
Answered for the pursuers; The whole was a fraudulent contrivance to hinder a confirmation, and prevent all the creditors from coming in pari passu. The defunct's bankruptcy was notorious, as is evident from the words of Hart's application to the Commissaries. If the effects had been fairly divided, there would have been a great deficiency. To prevent this, the name of the relict is used, as she had nothing to lose; but the defenders, and their doer Watson, were the conductors of the whole. They, by the transaction with her, authorised her intromission, and by false representations, obtained the possession of the goods from Smith, thereby taking the goods out of the custody of the Court; a step highly irregular, as done both in contempt of the Court, and to defraud the pursuers.
The Court seemed to be of opinion, that there was no place for a passive title in this case; at the same time that the intromitting with the goods sine titulo, after they were in the hands of the Commissaries, and thereby defeating the legal sequestration, was highly irregular; as was likewise the taking such obligation from the relict, and receiving payment from her, all within the six months; that they ought therefore to be subjected in valorem.
“The Lords found the defenders liable to the pursuers for the debts pursued for, being within the value of their intromissions.”
Act. Lockhart.Alt. Advocatus, A. Pringle.Clerk, Kirkpatrick.
Fol. Dic. v. 4. p. 47. Fac. Col. No 200. p. 298.
