[1761] Mor 5298
Subject_1 HEIR APPARENT.
Subject_2 SECT. V. Privilege of selling the predecessor s estate by a public auctions.
Date: Hew M'Kaill
v.
Brown of Greenback
30 June 1761
Case No.No 44.
The expense of a sale by an heir apparent, upon the act 1695, must be paid out of the subject.
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A sale by an heir apparent upon the act 1695, was opposed by the only creditor who appeared, and whose debt amounted to a greater sum than could reasonably be expected for the subject. And for him it was urged, That if the pursuer, contrary to the interest of the creditor, was resolved to prosecute the sale, he should have no claim for the expense of the process, in case the price proved not sufficient to pay the debt. This point being reported to the Court, it was found, that the expense of the process must be paid out of the subject.
This judgment is not founded on the statute, which mentions nothing of expenses. Neither can the claim of expense be drawn as an inference from the statute; because the privilege is given to the heir apparent for his own sake, and not for the sake of the creditors. As little is the claim founded in equity; for the creditor here was not benefited, and esto he had been benefited, no man is bound to pay for a benefit he receives against his will.
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