Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HEIR AND EXECUTOR.
Subject_3 It is the nature of the obligation granted for the price of lands purchased at a Judicial Sale, and not of the debts ranked thereon, that regulates the relief quoad these debts, between the Purchasers, Heir, and Executor.

John Arbuthnot
v.
Ann Arbuthnot

Date: 23 June 1773

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[Faculty Collection, VI. 180; Dictionary, 5225.]

Auchinleck. The debt appears to have been moveable quoad debitorem, and therefore the interlocutor is right.

Kaimes. James Arbuthnot purchased an estate. The price was not paid up during his life. The heir takes the estate. The executor must pay up the price.

Gardenston. This is the same case as if I should buy an estate by a private bargain or a voluntary sale. If I have not paid up all the price during my life, it must be made up by my executor.

Pitfour. The hardship mentioned by Mrs Ann Arbuthnot, (at the end of Her petition,) occurs every day. It particularly occurred, not many years ago, in the case of The Children of M'Kenzie of Kilcowie.

President. The bond is personal altogether, though granted for extinguishing of heritable debts.

On the 23d June 1773, “The Lords repelled the defences, and found Mrs Ann Arbuthnot liable secundum vires inventarii.

Act. R. M'Queen. Alt. A. Lockhart.