Scottish Court of Session Decisions

Subject_1 PERSONAL and TRANSMISSIBLE.
Subject_2 SECT. III.

What Rights go to Assignees.

Cockburn
v.
The Lord Sinclair

Date: 3 December 1674
Case No. No 66.

An aliment granted by the king was found not affectable by the grantee's creditors, though betowed expietate only, and not for services.

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The Lord Sinclair having married his daughter to the Laird of Harmiston, did, in a contract of marriage, dispone the whole estate, with burden of his debt, and did retain only for his aliment 8000 merks yearly, and that he might have the less trouble by arrestments of creditors, Harmiston gave bond to Pilton, for paying him 8000 merks yearly, during the Lord Sinclair's life. Thereafter Pilton obtained a gift of Exchequer of Harmiston's escheat and liferent, and gave a backbond, bearing, that, after the debt of the horning, and expenses of the gift, the benefit thereof should be applied, in the first place, for payment of this annuity of 8000 merks yearly. Thereafter there is a gift of escheat of the Lord Sinclair, granted to Mr George Gibson, who gave a back, bond for applying the same for the payment of several creditors, and after them, for my Lord Sinclair's aliment. The Lord Sinclair's estate, now belonging to Harmiston, being affected with many diligences, there was a double poinding raised, and a decreet of preference thereupon, preferring Pilton, as donatar to Harmiston's liferent for 8000 merks yearly, during Sinclair's life, conform to Harmiston's bond to Pilton, and Pilton's backbond to the Exchequer. And now the estate being farmed, and several creditors having arrested that were not in the first double poinding, the tacksmen and their cautioners gave in a bill of suspension upon double poinding.—The Lords ordered the cause to be heard in their presence upon the bill.—The creditors had arrested in the tacksman's hand in anno 1664; and did now allege, That the bond of 8000 merks, granted by Harmiston to Pilton, was to the Lord Sinclair's behoof, as appears by Pilton's oath, produced in a former process, and so being the same case as if it were granted to Sinclair himself, his creditors arresting would exclude him; 2do, The bond is null, as being fraudulent, contrary to the act of Parliament 1621, anent bankrupts; for these creditors being anterior to the disposition made by the Lord Sinclair to Harmiston of his whole estate, by which he became insolvent, this was a fraudulent conveyance, to take a bond from Harmiston to Pilton, for the use of the Lord Sinclair, to hinder access to Sinclair's creditors, wherein Pilton was partaker of the fraud; and this bond being either declared null or fraudulent, Pilton's gift, founded thereupon as to the preference, will fall in consequence; or it being clearly in trust in Pilton's person, to the behoof of Sinclair, it must be presumed, that Pilton, taking the gift of Harmiston's escheat, was a continuance of that trust; so that, if the gift were in Sinclair's name, the creditors would be preferred. It was answered for Pilton, That he denied any such trust; but that, albeit it had been in trust to Sinclair's behoof, there was no fraud; for the Lord Sinclair having disponed to Harmiston an estate of 28,000 merks by year, with burden of his debt, which exceeded not 50,000 merks, he had prejudged no creditor and might fairly have taken a bond from Harmiston for his aliment of 8000 merks yearly, which was no more than proportionable to his quality and estate, and the putting of it in the name of another was to the prejudice of no creditor who had access against his estate, yea, and against his person, but it only saved him the trouble of arrestments as he expected; so that there being no fraud, albeit the bond had been to Sinclair's behoof ab initio, Pilton might very fairly according to that trust, expend sums for Sinclair's aliment, which being done before any diligence of Sinclair's creditors against Pilton, the bond became onerous, and in so far no trust, but Pilton's proper interest; for that which is to the behoof of another ab initio, may and often doth cease to become trust, and becomes the proper right of the person once in trust; for such rights are ever sustained for all debts due to the intrusted person, who cannot affect a right standing already in his person, and therefore, the trust is always held as effectual as any diligence he could do to affect the same in another person. 2do, That which here is in question, is Harmiston's rent, which falls within his liferent-escheat, whereunto Pilton is donatar upon this very account to secure himself, that he might without hazard, employ the sum for Sinclair's aliment, which gift is declared before any arrestment. And as the King might freely gift the liferent, excluding creditors who had not done diligence in cursu, so he had given it to Pilton for securing this bond, as appears by Pilton's backbond; and albeit it could be presumed that the gift was also to Sinclair's behoof, yea though it had been given in Sinclair's name, it being an aliment granted by the King, would not be affected with Sinclair's, creditors, much less could Pilton be called in question when he had expended the same.

The Lords preferred Pilton upon his gift against these creditors, as they had done against the other creditors in the former decreet of preference.

Fol. Dic. v. 2. p. 77. Stair, v. 2. p. 288.