Acts of the Heir proceeding from his Connection with the Predecessor.
The Creditors of Bryce, William, and George Blairs, v. David Blair
Date: 13 May 1791 Case No. No 76.
Where the intromissions of the heir have been with a view of preserving the effects, no passive title is incurred.
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After the death of Bryce Blair, and his two sons William and George, who were proprietors of certain lands in the county of Dumfries, David Blair, their apparent heir, executed a deed, conveying the whole subjects to trustees, with powers to manage them, and also to sell what part was necessary for discharging the debts.
David Blair afterwards made up inventories with a view of entering heir cum beneficio, in virtue of the act 1695, chap. 24. His trustees also let a part of the lands, and for several years uplifted the rents; and they likewise sold some small parcels of land; but the sales were afterwards given up, the trustees not being in a situation to grant the necessary conveyances.
At last, after an interval of ten years, a process, of ranking and sale was brought by the creditors, and David Blair claimed a considerable sum as due to him; when an objection was stated, that, in consequence of the proceedings already mentioned, he had become liable gestione pro hærede for the debts of his predecessors; and therefore could not be allowed to enter into a competition with their creditors.
The question having been reported on informations, the Court were unanimously of opinion, that as, in those proceedings, David Blair had no view of appropriating the subjects, his purpose being that of discharging the debts due by his predecessors, no passive title had been incurred.
The Lords, therefore, “repelled the objection to the claim entered for David Blair, and remitted the cause to the Lord Ordinary.”
Reporter, Lord Henderland.Act. Dean of Faculty.Alt. Solicitor-General.Clerk, Mitchelson.
Fol. Dic. v. 4. p. 42. Fac. Col. No 178. p. 361.
