A disposition though burdened with the whole debts of the disponer, not mentioning the names of particular creditors or the sums, did not create a real burden on the land, as to these.
Click here to view a pdf copy of this documet : PDF Copy
John Stenhouse disponed his lands of Southfod to his eldest son John Stenhouse, with the burden of all his debts, and referring to an heritable bond granted by the son to him, of the same date, which mentioned the names of the creditors, but not the sums due to them.
John Stenhouse younger, having granted two heritable bonds over the lands to Isobel Innes and William Black, a competition arose between them and John Stenhouse elder.
John Stenhouse having claimed a preference for relief of his debts, in virtue of the disposition and heritable bond, the other two creditors objected, that the amount of the debts did not appear upon record, and that it was now fixed that general burdens are ineffectual against creditors and singular successors.
Answered for Mr Stenhouse; It is not necessary that the amount of the burden should appear upon record; it is enough that the record shew there is a burden, and direct the creditor or purchaser how to discover the amount of it: Hence it has been found, that a general reference in the sasine to the disposition where the extent of the burden is mentioned, is sufficient; Creditors of Smith, 26th July 1737.—infra, h. t.; Callenders contra Waddel of Eastermothal, 1761, No 76. p. 10261. Here the sasine upon the disposition refers to the heritable bond; and as that contains the creditors' names and designations, singular successors, whether creditors or purchasers, have it in their power to learn the amount of the burden. The record is in the same situation, in both cases; the only difference is, that, in the present, the singular successor is obliged to go one step farther; but the faith of the records being out of the question, that is but a light object compared with the defeating of the solemn contracts of parties.
“The Lords found, That the clause in the disposition granted by John Stenhouse in favour of his son, by which the disposition is burdened with the whole just and lawful debts then due by the father, without mentioning either the names or the sums due to them, did not create a real burden upon the lands disponed, quoad these debts; and found, that the defect was not supplied by the heritable bond which was granted, of the same date, nor by the infeftment which followed thereon.”
For John Stenhouse, Rolland.For the Creditors of John Stenhouse younger, Lockhart.Reporter Coalston.Clerk Pringle.
Fol. Dic. v. 4. p. 70. Fac. Col. No 11. p. 18.
