General service, a sufficient title to the heir of a creditor, to discharge a real burden created in the person of the debtor
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Thomas Cuthbertson sold the lands of Borland to John Barr, writer in Kilmarnock, for the sum of £2500. Barr was allowed to retain £1900 of the price for a year, and accordingly this sum was declared, in the disposition granted by Cuthbertson, to be a real burden on the lands. At the same time, Barr, along with John Gemmill of Templehouse as his cautioner, granted a personal bond for the sum to Cuthbertson.
Before any part of this money was paid, Cuthbertson died, leaving a settlement, by which his eldest son Robert, a minor, succeeded to the whole of his heritable property. He made up his title by a general service, as heir to his father.
Robert Cuthbertson, and his tutors, raised an action against Barr and his cautioner, for payment of the sum contained in the bond, when the defenders objected,
1st, The title of the pursuer is defective. A general service conveys only personal rights; under which description, the right reserved in the disposition, does not fall. By this reservation, the pursuer's father still remained infeft in the lands to the extent reserved; and the pursuer must therefore expede a special service; Halkerston against Drummond, No. 22. p. 14436; Robson against Lawrie and Corrie, 22d January 1799, No. 94. p. 16139.
2d, This is an attempt upon the part of tutors to convert an heritable into a moveable debt, which they are not entitled to do, except in cases of necessity; Erskine, B. i. Tit. 7. § 17.
Answered: 1st, There are two classes of real rights, which pass by general service; those which do not require infeftment, and those which are secured by an infeftment not standing in the person of the ancestor as creditor, but in the person of another, as debtor in the obligation. This latter class comprehends all real liens, by which infeftments are incumbered, but which are not themselves feudalized in the person of the creditor; Stair, B. 2. Tit. 10. § 1.; Ersk. B. 2. Tit. 3. § 49. In practice, it has always been held by men of business, that a general service is sufficient to carry these.
2d, Tutors may be obliged at any time to receive payment of an heritable debt, because the debtor may insist for his discharge. There is a great difference, therefore, between uplifting an heritable debt, and selling an heritable property.
The Lord Ordinary found, “That the title to the debt in question is quite sufficient for his enabling tutors to discharge the same;” and the Court adhered to his Lordship's interlocutor, upon advising a petition with answers.
Lord Ordinary, Methven.Act. Cranstoun.Agent, W. Patrick, W. S.Alt. Copland.Agent, H. J. WylieClerk, Home.
Fac. Coll. p. 243. No. 547.
