Janet Allan, and her younger Children v. The Creditors of Richard Cameron, her eldest Son
Date: 19 July 1780 Case No. No 78.
A disposition not containing a special enumeration of burdens or warrant to infeft for them, did not render them real. Those here in question were provisions to a wife and children.
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John Cameron, the husband of Janet Allan, executed bonds of provision, making considerable additions to former settlements on his wife and family; and at the same time he likewise disponed his estate to his eldest son, Richard Cameron, under condition, “that Richard should pay all his debts, and make payment Janet Allan, his well-beloved wife, of the different liferent annuities provided to her by contract of marriage and bond of this date, making in whole the sum of L. 100 Sterling; and likewise to pay to the younger children the several sums provided to them in a bond of provision, of this date, executed by him in their favour.”
The procuratory of resignation expresses “the burdens, provisions, &c. before written, here also held as repeated brevitatis causa, but nevertheless appointed to be ingrossed in the infeftment to follow hereupon; otherwise the same, with all that can follow thereupon, to be void and null.” And the same clause again appears in the precept of sasine.
The instrument of sasine accordingly specifies those burdens and provisions.
In the wife's bond of provision too, this declaration is made by John Cameron; “with the payment of which yearly annuity I have burdened my real estate, disponed by me to Richard Cameron, my eldest son, by disposition thereof in his favour of this date, and relative hereto.”
Richard Cameron, after the death of his father, became bankrupt; and a competition ensued, between his creditors on the one hand, and on the other, his mother, brothers, and sisters, who contended, that their respective provisions were real burdens on his lands, and entitled to a preference over his other debts. And, in support of that claim, they
Pleaded; From the expressions used in the disposition, and from the above-quoted declaration in the bond of annuity, John Cameron's intention of making the provisions in question real burdens on the subjects conveyed to his son, is clear and undoubted. Why then should effect be denied to it? Being specified in the instrument of sasine, the provisions are published by the records, and creditors or purchasers fully put on their guard.
It is true, a personal obligation upon a disponee is different from a real burden on the lands conveyed. But here is more than a personal obligation, an express order for ingrossing the burdens in question in the infeftment, sanctioned with the declaration, that the disposition should be otherwise void.
It is likewise admitted, that no indefinite or unknown incumbrance can be created on land. But though the wife's annuity only, and not the children's provisions, are expressed in the disposition, both are alike precisely specified in the infeftment; and therefore to this case that objection cannot be applied.
Answered; The disposition contains nothing more than a personal obligation on Richard Cameron, without imposing any real burdens on the subjects disponed. This could not be done without specially enumerating such burdens in the disposition or warrant of the infeftment, as well as in the infeftment itself, and declaring that the conveyance was granted only under them; Erskine, b. 2. tit. 3. § 49.; Bankton, b. 2. tit. 5. § 25. An effectual burden must be specially defined and ingrossed; and it must be really, and not personally conceived. None of these requisites, however, are complied with in this case; there being no specification in the warrant of infeftment except as to the widow's annuity, but only a reference to other deeds, which are personal, and contain no authority for taking sasine; for the instrument of sasine is to be regarded but as the bare assertion of a notary; February 21. 1765, Stenhouse contra Innes and Black, No 77. p. 10264.
That the obligation is merely personal, appears from the words in which it is conceived; and the order for ingrossing the provisions in the infeftment, or their being so ingrossed, can never alter their nature, which must still remain either real or personal, according to the original conception of them; Bankton, b. 2. tit. 5. § 25.
The Lords found, ‘That the provisions to the widow and younger children were not real burdens on the estate disponed.’
To this judgement the Court adhered, on advising a reclaiming petition and answers.
Reporter, Lord Monboddo.For Janet Allan and her Children, Lord Advocate, Maclaurin.For the Creditors of Richard Cameron, Ilay Campbell, Craig.
Fol. Dic. v. 4. p. 70. Fac. Col. No 118. p. 218.*** This case was appealed.
1781. May 15.—The House of Lords Ordered and Adjudged, That the appeal be dismissed, and the interlocutor complained of affirmed.
