Scottish Court of Session Decisions

Subject_1 FORFEITURE.
Subject_2 SECT. IV.

Competition Creditors with the Donatar of Forfeiture.

Sir Henry Hume, and Others, the Creditors of Kello,
v.
Sir Alexander Hume

Date: 6 July 1667
Case No. No 32.

An apprising deduced before treason, was committed with a charge after it, but before the process and sentence of forfeiture was preferred to the donatar.

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Sir Henry Hume, and Others, being both creditors to Alexander Hume of Kello, and John Hume his son, apprised the lands of Kello in anno 1649. and in anno 1653, charged the superior. In anno 1661, John Hume is forfault upon the treasonable crimes committed in anno 1651. Sir Alexander Hume is donatar to the forfaulture: The case of Alexander Hume's right before the apprising was, that, by contract of marriage, Alexander Hume had disponed several husband lands to John, reserving his own liferent of certain husband lands. The father continued to possess the lands reserved; and the son of the rest. The question is now concerning the lands reserved, whereanent the competition is betwixt the creditors apprisers, and the donatar. It was alleged for the donatar, That he ought to be preferred, because any right the creditors had is but an apprising, and a charge without infeftment; which charge, albeit it be equivalent to an infeftment, in the competition betwixt con-comprisers, yet it is no way equivalent as to the King; for, after the charge, all casualities of the superiority would fall to the superior, and so must the casuality of forfaulture fall to the King, 2dly, Though the apprisers had been infeft when they charged, their infeftment would have been long after the committing of the crime; and there was nothing before the crime but the naked apprising, which was no real right; so that the forfaulture devolving the fee to the King, with the burden only of such real rights as the superior had consented to before the crime, which cannot extend to this apprising, which is no real right, or to the charge and infeftment thereon, because after the crime. 3dly, Albeit the infeftment of the son, who was forfault, was base, holden of the father, yet it coming in the person of the King, or his donatar, can no more be a base right, but becomes public so soon as it is devolved to the King, which was at the committing of the crime, before the appriser's infeftment or charge. It was answered for the Creditors, That they ought to be preferred upon their legal diligence, for satisfaction of the lawful debt contracted before the crime; because they had apprised before the crime, and had charged the superior before the sentence of forfaulture; which charge is equivalent to an infeftment, and the King succeeding in the place of the forfault person utitur jure privato; and albeit no voluntary deed, after the committing of the crime, would be effectual against the King or his donatar, yet an apprising before the crime, and a charge before the sentence, or process of forfaulture, is sufficient in favours of the creditors; especially seeing the superiority being unquestionably in their father, they might charge him when they pleased, and having charged him, they become in his place, and cannot charge themselves as superiors of the forfault person.

The Lords preferred the apprisers in respect of their apprising before the crime, and the charge after, before the forfaulture.

It was further alleged for the apprisers. That the forfault person's right being only base, never clad with possession, their apprising against the father, who was not forfault, was preferable. It was answered for the donatar, That the forfault person's right was clad with possession, in so far as the forfault person possest a great part of the lands disponed, lying all together; and of the rest, the father's liferent being reserved, the father's possession was the son's possession. It was answered, That possession of a part cannot be sufficient for the whole, where there is an express reservation, hindering the natural possession of the rest, and where the rest are actually possest by another party; neither can the father's possession be the son's; because it is ordinarily found, that dispositions by a father to his eldest son, and infeftments thereon, reserving the father's liferent, are not thereby clad with possession; and albeit in reservations in favours of wives, the husband's possession will be the wife's possession; yet that is a special privilege favore matrimonii et dotis, and is not competent to any other. It was answered for the donatar, That a reservation in favours of a farther, in any gratuitous and clandestine infeftment, granted to the son, does not validate the same; yet the infeftment being for a cause onerous, viz. a marriage, which is a solemn and public act, the infeftment following thereupon is void of all suspicion of simulation; and as an infeftment to a stranger, reserving the disponer's liferent, would be valid by the disponer's possession, so must a son's upon a contract of marriage, otherwise great prejudice will follow, sons being frequently infeft in their father's whole estate, reserving their liferent of a part, and ordinarily but basely infeft, to secure the property, being more desirous to enter themselves as heirs to their fathers, after their death, if no posterior prejudicial deeds be done, which is more honourable for the family, all the infeftments would be overthrown, being upon debts contracted after the infeftment.

The Lords being of different judgments in this point, were loath to decide them, because the case was decided by the former vote.

Fol. Dic. v. 1. p. 314. Stair, v. 1. p. 470.