Subject_1 CREDITORS OF A DEFUNCT. Subject_2 SECT. I.
Decisions upon Act 24th, Parliament 1661.
Adam Bell, Trustee for the Creditors of John Morton, the Elder, v. Richard Lothian
Date: 25 February 1773 Case No. No 9.
The creditors of a person deceased, are entitled to reduce deeds granted by his apparent heir, intra annum deliberandi, to their prejudice, on the second clause of the act 1661, c. 24. although these creditors should have used no diligence within the three years from his death.
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John Morton, the elder, who was proprietor of the lands of Blackbriggs, died in May 1767. Within a year from his death, John, his son, being debtor to Lothian, granted to him a bond and disposition, under reversion, over Blackbriggs, for a certain sum, Lothian giving a relative missive, whereby he became bound to pay off a debt affecting the said lands, partly owing by Morton the elder.
An action was brought, at the instance of Bell, as trustee for James Kirkland and others, creditors of Morton the elder, concluding, that Lothian's right to the lands should be reduced, in so far as the pursuers are hurt thereby, founding on both clauses of the act 1661. c. 24. But the first branch was not thought applicable to the species facti; and the judgment went upon the second.
To the competence of the challenge on the second branch of the act, objected by the defender; The law gives no preference to the creditors of a defunct, in competition with the creditors of an apparent heir, as, to the defunct's estate, unless they use diligence against it within the space of three years from his death. In default of which, the creditors of the apparent heir have an equal, and may acquire a preferable right to them, either by the diligence of the law, or the act of the heir; which, though done within the three years and, of consequence, reducible, if the creditors of the defunct use diligence within that time, yet, if the three years are suffered to elapse, these diligences and securities will become valid and effectual.
Answered; The second clause of the act, by which the heir is prohibited to sell within the year, is pure and absolute, and the limitation applies only to the first clause of the act. This very question was determined, in the case Taylor contra Lord Braco, 26th November 1747, No 8. p. 3128. where the Court decerned in the reduction of the Noble Lord's right to an estate, solely upon the last clause of the act 1661; for it was not so much as alleged that any diligence was used within the three years.
‘The Lords sustained the reasons of reduction of the bond and disposition, as being granted by Morton, the younger, intra annum deliberandi:’ Bat, as the defender, if this point should be given against him, had prayed a reservation of all claims competent to him, against the estate of Morton, elder, by virtue of the debts due to him, and securities taken in consequence thereof, the Court remitted to the Ordinary to hear paries on that and some other points.
Act. J. Boswell.Alt. Crosbie.Clerk, Tait.
Fol. Dic. v. 3. p. 166. Fac. Col. No 63. p. 153.
