Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. V.
Whether requisite where the Subject is in the Possession of the Heir or Executor? - Whether the Father's Possession the same with the Childs?
Richardson v. Shiells
Date: 19 February 1784 Case No. No. 42.
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Alexander Orr had become bound to dispone certain lands, but died before fulfilling that obligation, though after a bond had been granted to him for the price. His eldest son, who was his universal disponee, possessed the lands for some time. He then obtained a sequestration, in terms of the act 1772, of the effects belonging to himself and to his father. Shiells, a creditor of the father, expede a confirmation as executor-creditor, and gave up in inventory the bond above mentioned, for which a competition ensued between him and the factor under the sequestration; the latter pleading, That by the general disposition, followed by possession of the lands for which the bond was granted, the sums in question were completely transferred to the general disponee, and fell, of course, under the sequestration. Answered for Shiells, That the nearest in kin, or a general disponee, may, without confirmation, acquire the property of particular subjects in consequence of possessing them; and if the bond had been paid, or renewed to the son, the creditors of the father could no longer have attached it as in bonis of their debtor. But this will not apply to the bond in dispute, which must still be viewed as the property of the defunct. The Lords preferred Shiells in virtue of his confirmation.
