An agent who carried on the ranking and sale of an estate, for a minor, as heir cum beneficio, was found to have no preference for his account to the creditors of the defunct.
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Alexander Orme, writer to the signet, was employed by the tutors of Robert Wright to make up the titles of their pupil to his father, Wright of Freuchie, as heir, cum beneficio, and to bring an action of ranking and sale of the estate at the instance of the heir. For these purposes, the title-deeds of the estate were put into his hands. The process of sale was carried on, and the expense of it debursed by Mr Orme until the ranking was finished; after which it was allowed to lie over. Upon the majority of the heir, a new process of ranking and sale was brought at the instance of his father's Creditors, in which Orme appeared, and
Pleaded; That he was entitled to be ranked for the expense of the former process as a preferable creditor, from his right of hypothec on the title-deeds of the estate still remaining in his hands.
Answered for the Creditors; The claimant is not a creditor to the deceased Wright of Freuchie in this account. He is only creditor to the heir and his tutors and curators, who were his employers. But the heir of a bankrupt has no more right to withdraw the title-deeds of the bankrupt, than any part of his estate from the creditors, and cannot hypothecate them for payment of what is advanced and furnished to himself.
The Court repelled the claim founded on the right of hypothec, reserving action to the pursuer against the minor and his tutors and curators.
Lord Ordinary, Alva.For Orme, Ferguson.Alt. Scott.Clerk, Gibson.
Fol. Dic. v. 3. p. 295. Fac. Col. No 45. p. 79.
