Scottish Court of Session Decisions

Subject_1 HEIR and EXECUTOR.
Subject_2 SECT. II.

Mutual Relief.

The Honourable John Arbuthnot, second Son of the Viscount of Arbuthnot, and the said Viscount, his Administrator-in-law,
v.
Mrs Agnes Arbuthnot

Date: 23 June 1773
Case No. No 20.

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 purchaser's heir and executor.

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The estate of Finart, the property of John M'Farlane, having been incumbered with debts, partly secured by voluntary infeftments, and partly by adjudication, an action of ranking and sale of that estate was brought, at the instance of the creditors; and the same having been purchased at the sale by John Rowan, writer to the signet, who granted bond, in common form, for payment of the price, payable to the creditors as ranked, deeree of sale went in his name accordingly.

John Rowan having acted, in the premises, only as trustee for James Arbuthnot, he, by deed dated 27th November 1747, declared the trust, and granted a conveyance of the lands thereafter in his favour; and James having died in 1747, without issue, these lands devolved on Robert Arbuthnot, who procured himslf served and retoured heir in general to his brother, whereby he carried the disposition of the foresaid lands, on which no infeftment had followed in James's person.

Robert, who survived James but a short time, made a settlement in favour of John Arbuthnot, the second son of the Viscount, then under age, and whom the creditors of James having attached for their payment, and it being judged necessary that Robert's estate should be sold, warrant was obtained for that purpose; and, when sold, the creditors, both of James and Robert, were paid, out of the price thereof, the respective sums due to them.

Thereafter, the present action was brought, at John's instance, against Mrs Ann Arbuthnot, the executor of James, concluding, that she should be decerned to make payment to the pursuer of the particular sums therein mentioned, which were paid by him, of the debts that were owing by the said James Arbuthnot, and also to relieve him of a debt of the said James Arbuthnot still outstanding. And in this action the Lord Elliock Ordinary ‘repelled the defences, so far as concerns the debts due to the creditors ranked on the price of the estate of Finart, and the debt due by bond to Matthew Henderson; and found Mrs Ann Arbuthnot, defender, as executor of her brother, James Arbuthnot, liable in payment of the same.’

Pleaded in a reclaiming petition; As, in the course of legal succession, the heritable estate goes to the heir, and the executry, or personal estate, to the other nearest of kin, each of these transit cum suo onere. The heritable debts must be paid by the heir out of the heritable estate; and the moveable debts are a burden on the executry, and must be paid therefrom. Though both estates are equally liable to the creditors, they are entitled to mutual relief against each other, in so far as either have paid debts which do not ultimately fall upon them. And, as the debts in question had a real lien upon the estate, secured by infeftments or adjudications, and as these were not loosed by the judicial sale of the estate, but remained still a real burden upon it, they must fall ultimately on the heir, and not on the executor.

The pursuer's observation, that a debt may be heritable quoad debitorem, and personal quoad creditorem, et vice versa, is nowise applicable to the case in hand. The debts were heritable, both quoad debitorem et creditorem, being actually secured on lands, the property of James Arbuthnot, which undoubtedly made them heritable quoad debitorem.

Answered; As the right of succession is regulated by the animus of the creditor, so the question of relief between the heir and executor is regulated by the animus of the debtor.

Where the debtor grants a real security to the creditor, for his payment, as he has, by his own act and deed, made the same a real burden on the estate, the law does not presume it was the intention of the debtor, that the same should remain ultimately a burden on his heir; and, consequently, if he pays, he pays without relief; and, if it is paid by the executor, the executor will be entitled to be relieved thereof by the heir. But that is not the case at present. The obligation which, in this case, was granted by James Arbuthnot, or, which is the same thing, by John Rowan, his trustee, is a mere personal obligation, in common form, for payment of the price to the creditors, as they should be ranked.

It is no doubt true, that the debts were really secured on the lands; but then that real security was not created by the act and deed of M'Farlane, the original debtor; and there is no doubt that, in a question between his heir and executor, these debts would have been ultimately a burden on the heir; but the additional security that was given to the creditors by the purchaser, from its nature, burdened the executor, and the personal estate, and of which, therefore, the heir fell to be relieved by the former.

Again, it is a trite distinction in our law, that obligations may be heritable quoad creditorem, but moveable quoad debitorem. Thus, bonds excluding executors, though they descend to the creditor's heirs, are payable by the debtor's executors, without relief from the heir; as the debtor's succession cannot be affected by the destination of the creditor. And the present case is likewise a very proper instance of it. These debts being really secured on the lands, so the supervening personal security granted by the purchaser, will not render these debts moveable, but the real security, as the jus nobilius, must remain, and regulate the succession of the creditor. The real securities, however, created by the act and deed of M'Farlane, cannot affect the succession of the purchaser; and, as he came under no more than a mere personal obligation, for payment of of the price to the creditors as ranked, that obligation cannot, in the least, be affected by the nature of the creditor's rights, but must be performable by the purchaser's executor, out of his personal estate.

The respondents do not dispute that the debts do remain a burden on the estate, after the purchase, as much as before it, and that these burdens must likewise affect the heir; but the question is, Whether the heir is entitled to be relieved of these burdens by the executor? And it is contended, that, as the purchaser granted a personal obligation to pay the price to the creditors as ranked, that so he might be entitled to take the estate, disburdened of the debts of his author, that this personal obligation must be made good, after the death of his executors. Indeed, the debts cannot, with propriety, be said to be a burden on the estate of the purchaser. The estate is not the estate of James Arbuthnot, until the price is actually paid to the creditors; and, therefore, the price cannot be said to be a burden on his estate. The decree of sale does not give a right to the purchaser; it gives no more than a conditional right, viz. on payment of the price to the creditors, as ranked; and on James Arbuthnot's death, it was incumbent on his executors to purify that condition.

‘The Lords adhered to the Lord Ordinary's interlocutors, and found Mrs Ann Arbuthnot only liable to the extent of the inventory.’

Act. M'Queen. Alt. Dean of Faculty. Clerk, Gibson. Fol. Dic. v. 3. p. 257. Fac. Col. No 74. p. 180.