Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Burns
v.
Pickens

Date: 11 July 1758

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This case is reported by Kames, (Sel. Dec. No. 149, Mor. 5275,) and in Fac. Coll. (Mor. 5273.) Lord Kilkerran's note is as follows:—

“The act 1695 may be eluded many ways.

1st, Where he serves to his predecessor last infeft, he at the same time serves cum beneficio to the person who was three years in possession.

2dly, If in place of serving he pursues a sale.

3dly, He may elude the act this way, by really borrowing money to the extent of the whole heritage, he can have right to as apparent heir, and allowing the same to be carried off by adjudications. Nor will his creditors adjudging on his bonds, nor even his possessing upon these adjudications, give any ground of action against him to the creditors of the preceding apparent heir, who was three years in possession, though it would to the creditors of the defunct last infeft the estate were carried off for the apparent heir's debt.

The present question in this case is, that as a creditor of the apparent heir's adjudging for the apparent heir's debt, and even such adjudger's possessing upon such adjudication, will give no action to the creditors of the apparent heir upon the act 1695, because such possession is not the apparent heir's possession, whether an adjudication on a gratuitous bond and possession upon it have a different effect, where the obtainer of the gratuitous bond has it as an absolute gift.

1758. July 11.—The Lords adhered.—They thought it is equal as if the apparent heir had taken right to the adjudication and then disponed it.”