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Jack v Gray. [1632] Mor 897 (2 February 1632)
URL: http://www.bailii.org/scot/cases/ScotCS/1632/Mor0300897-026.html Cite as:
[1632] Mor 897
Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. III.
Alienations in favour of Conjunct and Confident Persons.
Jack v. Gray
Date: 2 February 1632 Case No. No 26.
A disposition to a son-in-law is supported, although granted in momento fugæ. There was no previous diligence, and the disposition was granted in satisfaction of tocher, for which the father was bound in his son's contract of marriage.
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One Gray having comprised James Liddel's house in Leith, and being infeft thereupon, and Jack, son-in-law to the said James, having received a disposition of that house from him, for satisfying of his tocher, owing by his contract of marriage, and being also infeft conform thereto; they contending for the mails of the house, Jack was preferred, albeit the disposition made to him, was alleged to be made by a bankrupt, et inter conjunctas personas, and in meditatione fugæ, et in momento fugæ, the maker having fled to Berwick on the morrow after the making thereof: And Gray had denounced the land to be comprised, before he was infeft on his disposition; likeas he had served inhibition, and was infeft, and had arrested the duties of the house, which diligence, so done, ought to give him preference; at least to make him equal with the other party, who is a conjunct person, and has only acquired a voluntary right, without doing of any diligence at all, and was conscious of the bankrupt's flight; and there being also but a few days betwixt his investment, acquired on diligence, and the other parties, voluntarily purchased, as said is: notwithstanding whereof Jack was preferred, in respect of his infeftment, depending on an disposition, made for a preceeding lawful onerous cause; seeing the said disposition preceeded any diligence done against the common author by Gray; for the Lords found, it was lawful to a just creditor, to take either payment, or lawful security, in place of payment of his true debt, from any person, albeit becoming bankrupt, etiam in ipsa fuga; where there was no preceeding inhibition, nor diligence before the doing thereof used by any concreditor; and therefore Gray's allegeance was repelled.
