Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION I.

Behaviour as Heir.
Subject_3 SECT. VIII.

Acts of the Heir proceeding from his Connection with the Predecessor.

Carfrae
v.
Telfer

Date: 20 January 1675
Case No. No 60.

Click here to view a pdf copy of this documet : PDF Copy

A person being pursued as representing a debtor, upon that passive title, that he had behaved himself as heir to the defunct, in so far as, being convened at the instance of another party, he had proponed a peremptory defence; the Lords found, That the proponing of a defence upon payment or such like, was not such a deed as could infer the passive title of behaving, unless it were adminicled with intromission or otherwise.

Reporter, Nevoy. Clerk, Hamilton. Fol. Dic. v. 2. p. 32. Dirleton, No 223. p. 104. *** Stair reports this case:

1675. January 21.—James Telfer,as assignee to a disposition granted by Mr John Corsan, pursues John Corsan, his oye, for implement thereof, and insists upon this passive title, that the said John Corsan being pursued by another creditor of his goodsire's, did propone a defence of payment and made litiscontestation thereupon, and at the term assigned failed in probation, and so was decerned, which a behaving as heir, and an owning and immixtion in the inheritance; seeing in all processes against apparent heirs, if they propone payment, they liberate the pursuer from proving the passive titles; because by proponing upon the defunct's right they behave as heirs. It was answered, That albeit custom hath exempted pursuers from proving the passive titles when the defenders proponed payment, because they ought not to delay the pursuer, if they will not represent; yet that never was, nor can be extended as a general passive title to other processes.

The Lords found the condescendence upon this passive title, as aforesaid, not relevant.

Stair, v. 2. p. 307. *** This case is also reported by Gosford:

In a pursuit at the said James's instance against John Corsan, for implement of a disposition made to his father, upon this passive title, that he being pursued by other creditors of his father's as representing him, he did propone peremptory defences of payment, for not proving whereof he was decerned; it was alleged, That albeit he had proponed peremptory defences against another creditor, which, if he had succumbed to prove, would infer a passive against him to make him liable for that debt; yet that being res inter alios acta, and he not being liable upon any of the passive titles, could not be extended to another, unless they could condescend upon some other passive title of behaviour. The Lords did sustain the defence, and found that the title of behaviour as heir, not being any otherwise offered to be proved than by proponing a defence in one process, ought not to be extended against the apparent heir, to make him liable to his predecessor's whole debts due to other creditors against whose titles he proponed no defence at all;—the only reason of finding him liable upon proponing of a peremptory defence being, that thereby he secluded that creditor pursuing from having a present decreet whereby he might affect the debtor's estate by a comprising or adjudication upon the apparent heir's renunciation; which reason could not be pretended by this pursuer, to whom he was willing to grant a renunciation, so that he ought to condescend upon a passive title if he would have him personally liable.

Gosford, MS. No 739.