Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. VII.

Effect of Fraud - of Force and Fear - of Simulation of a Gift of Escheat - of Spuilzie - of Pactum contra Fidem - of Minority - of Reduction ex capite lecti - of Donatio inter Virum et Uxorem - of Payment to an Adjudger.

John Russell, Hugh Ross, and Others,
v.
Creditors of Hugh Ross of Kerse

Date: 31 January 1792
Case No. No 108.

An entail not followed by infeftment, not effectual, though recorded, against the real diligence of the creditors of the institute, he being also heir of line.

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The father of Hugh Ross, who stood infeft in the lands of Kerse, executed an entail of them, containing the usual clauses, in favour of him as institute, and of a series of substitutes.

The deed was recorded in the register of tailzies; but sasine did not follow upon it.

Mr Ross, after his father's death, expede a general service as his heir of line; but made up no titles under the entail.

He had contracted considerable debts, as his father also had done; and some of his creditors having charged him to enter heir of line in special to his father, led adjudication, which was completed by infeftment.

A process of sale having being raised, the estate was purchased by Mr Russell; after which a doubt was entertained, whether or not the entail, personal as it was, precluded the above mentioned diligence. In order to try this point, on which the right of the purchaser depended, an action of reduction, at the instance of the Creditors, was raised, in which the purchaser, together with Mr Ross, and the other heirs of entail, were called as defenders. On the part of the pursuers it was

Pleaded; No personal right, such as that resulting from the entail in question, could ever be placed in opposition to the real right of a creditor-adjudger completed by adjudication, if proper attention were given to the distinction between those different kinds of right.

The first is that by which a person is vested in the property of a subject; the other that which gives a title or claim to become so vested, but does not transfer the property. Thus, if any one infeft in lands convey them to a party, who postpones the taking of sasine, and if, in the mean time, he again dispone them to a different person, by whom infeftment is immediately obtained, the latter alone becomes proprietor, or is vested with the property, while nothing remains to the former but a personal action against the fraudulent disponer. In like manner, before a disponee be infeft, he may be cut out by an adjudging creditor of the disponer's, whose right is completed by sasine; June 1737, Bell contra Garthshore, No 80. p. 2849.; 13th February 1781, Mitchels contra Ferguson, No 105. p. 10296.

Now Mr Ross's father, who was infeft in the estate, granted a disposition in favour of a series of heirs of entail, on which, however, sasine did not follow. The granter, therefore, during his life, continued vested in the property of the estate; and at his death, it was in hæreditate jacente of him, being then subject to a twofold claim or personal right; first, that of the heirs of line, and next that of the heirs of entail. Both these rights belonged to Mr Ross, and under either of them he could become vested in the fee. If he did so as heir of line, by special service and infeftment, a claim of forfeiture, no doubt, against him would thence accrue to other heirs of entail; but it is perfectly obvious, that this presupposes him, in the first instance, to have acquired the unlimited right of property. Hence, being fully vested, he could dispone with effect; and the right of the disponee would be unchallengeable, when clothed with infeftment. For the same reason, his creditors could adjudge with effect, the special charge, authorised by act of Parliament 1540, being equivalent to a special service.

For farther illustration, let it be supposed, that Mr Ross's father, instead of a deed of entail, had executed a conveyance to an onerous purchaser, which certainly will not be supposed a less valid disposition. It is clear, that, if this purchaser remained uninfeft, another purchaser, acquiring right from Mr Ross, might have effectually vested himself in the property by adjudication in implement; or any creditor-adjudger could have equally obtained a complete real right.

The registration of this entail is nothing at all to the purpose. The statute of 1685 superadded that new requisite for the safety of creditors and of purchasers; but has no tendency to render a personal right a real one, which alone could have effect against the complete real diligence in question.

Nor could creditors or purchasers derive any advantage from this registration in the record of tailzies, when that of sasines gave them no information of the existence of such a restraint on the property.

These observations received the sanction of the Court, in the case of the Creditors of Douglas of Kelhead, in 1765. (Not reported.)

Answered; Mr Ross's right is subject to forfeiture, in virtue of the irritant and resolutive conditions of the entail; so that a declarator of irritancy, at the suit of the substitute heirs, would entitle them to hold the estate unburdened with debts, and should seem to lay the subjects purchased open to eviction.

For the argument founded on the want of sasine seems to be obviated by the statute of 1685. It requires, indeed, the insertion of the irritant and resolutive clauses in the instruments of sasine; and if there had been infeftment, this requisite would here have been essential; but as there was not, it is enough that the limitations appear on record in the procuratory of resignation.

Accordingly, in the case of Denham of Westshiels, voce Tailzie, it having been found, that a personal entail was ineffectual against creditors, that decision was reversed on appeal.

The Lord Ordinary reported the cause on informations, when a hearing in presence was appointed; and it was ordered, that the informations in the case of Kelhead should be reprinted, for the perusal of the Court.

On advising the question, however, the Court were unanimously of opinion, that the personal entail could have no effect against the real right of the creditors, and that this was a point which admitted of no doubt. And it was observed, that what had given occasion to so ample a discussion, was an opinion expressed on the Bench in the case of Thomson against Douglas, Heron, and Company, (No 52. p. 10299.) “That adjudging creditors stand in a different predicament from disponees, as they must take the right of their debtor tantum et tale, as it is in his person;” an opinion now stated to have been erroneous.

Reporter, Lord Swinton. For the Creditors, Rolland et alii. Alt. Wight et alii. Clerk, Sinclair. Fol. Dic. v. 4. p. 73. Fac. Col. No 200. p. 421.

*** N. B. The Court had pronounced a similar judgment in the case of Stewart and others, Creditors of Sir John Douglas of Kelhead contra Douglas, in 1765, which is omitted in the reports of that year. See Appendix.