Acts of the Heir proceeding from his Connection with the Predecessor.
John Blount v. John Nicolson
Date: 26 February 1783 Case No. No 73.
Passive title, whether inferred, universally, by entering heir more burgi, or by bona fide disponing the heritage to trustees for the predecesor's creditors.
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Blount was creditor to the father of Nicolson, who died the proprietor of a tenement in the town of Dumfries. In this tenement Nicolson was cognosced heir to his father by the Magistrates of the town more burgi. He afterwards disponed the subjects to certain persons, as trustees for his father's creditors; having done so by the direction of a meeting of these creditors.
Blount then instituted an action on the passive titles, against him as having entered heir more burgi, and likewise as having granted the disposition above mentioned.
Pleaded for the defender; 1st, By entering more burgi heir to his father in a special subject only, he is not universally liable for the debts of the predecessor, but only in valorem, in the same manner as if he had been an heir of provision. 2dly, The disposition was bona fide granted at the desire, and for the benefit of creditors, and ought not to infer to him the penal consequence of a passive title.
Answered; There is no distinction known in law as to the extent of representation between entering heir more burgi and service in the more regular and formal manner. If an heir wishes not to represent universally, he may resort to the beneficium inventarii introduced by the statute of 1695, c. 24. That is the proper and only resource in such a case; and they who without recurring to it chuse to take upon themselves the general character of heirs, should not pretend to decline an universal representation. With respect to the disposition, as it would be clearly of evil consequence to creditors, if an heir, without subjecting himself to the debts of his predecessor, were at liberty to convey his predecessor's subjects to any person whom he might think proper to nominate in the capacity of trustee; so that conveyance ought to infer a passive title.
This question having been reported to the Court by the Lord Ordinary, the “Lords, in respect the only passive title acknowledged by the defender was that of being cognosced heir to his father more burgi in a tenement in Dumfries, which he conveyed to trustees for behoof of his father's creditors, sustained the defence.”
Lord Reporter, Braxfield.Act. Maclaurin.Alt. Corbet.Clerk, Menzies.
Fol. Dic. v. 4. p. 42. Fac. Col. No 100. p. 159.
