Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. V.

Clauses burdening Conveyances.

David Morison, Second Son the Laird of Dairsie,
v.
His Creditors Comprisers

Date: 20 February 1673
Case No. No 58.

If a procuratory of resignation is disponed by a father to his apparent heir, with the burden of provisions in favour of the rest of the children, whereupon the heir is infeft, the children will be preferred to all comprisers for debts contracted thereafter.

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In a double poinding raised at the instance of the Tenants against the said David and his father's creditors; it was alleged for the said David, That he ought to be preferred to other creditors, because the lands and rights which they had comprised were affected with his debt of 10,000 merks, in so far as the disposition of the lands of Dairsie, bearing a procuratory of resignation made to Sir George his father who was common debtor, was assigned by him to his eldest son, with express provision, that the fee in the son's person who was apparent heir, should be burdened with L. 40,000 to the rest of the children; likeas, the said procuratory, by a charter under the Great Seal, bearing expressly, that burden and provision; for fulfilling whereof, he had granted bond to the said David for 1000 merks, as his part of this provision in favours of the rest of the children, whereupon he had comprised. It was alleged for the rest of the comprisers, That they ought to be preferred, because the said David's right was founded upon a resignation, which did only bear a power to burden the said estate with the sums above written, which was but mera facultas, reserved to the father to burden or not as he pleased, and the father having contracted debts before he did grant any particular infeftment upon his obligement, he could not exercise that faculty thereafter to their prejudice, especially as to the father's liferent, which was expressly reserved out of the father’ right and assignation made to his eldest son, containing the power to burden the estate in favours of his children, whereof he was never denuded before the creditors comprising. It was replied. That it being lawful for fathers to provide for their children, and their provisions not being latent deeds, the same can never be reduced at the instance of any creditors for debts contracted thereafter. But so it is, that the father Sir George, when he had only right by a disposition and assignation, did assign the same in favours of the eldest son, with the burden of the provision to the rest of the children; and accordingly, this eldest son was infeft under the Great Seal, which was never nuda facultas, or a latent deed, but did affect the infeftment of fee, which was never in the person of the father, but in the son's, only affected as said is. The Lords did prefer the said David, and found, that the infeftment made by the father to his eldest son was not, by a naked reservation, to burden, in which case, before that faculty was exercised by giving of a real infeftment, the creditors having comprised for lawful debts, would have been preferred; But the assignation and infeftment made to the son being per verba de presenti, and a present binding of the fee, they found that it gave a right to the children for their provisions. But in respect that the father's liferent was reserved, both out of the fee made to the apparent heir, and the provisions made to the rest of the children, they did prefer the rest of the comprisers during the father's lifetime.

Fol. Dic. v. 2. p. 66. Gosford, MS, No 579. p. 322.