Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. V.

Gratuitous Alienations by persons solvent at the time.

M'Kell
v.
Jamieson and Wilson

Date: 10 November 1680
Case No. No 47.

A gratuitous alienation was sustained, and found not reducible by onerous creditors, if the disponee had then a visible estate sufficient for all his debts, whether by infeftments, moveables, or bonds, tho' ex eventu he might prove insolvent.

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M'Kell pursues a declarator of expiring of an apprising of a tenement in Leith, deduced against Edward Jamieson. Compearance is made for Jean Wilson and Lodovick Callender, her husband, who repeat by way of defence, a reduction of the right of this tenement, before Jamieson's right against Kier his author, to whom it was disponed by Houston, upon this reason, that Kier was Houston's oye by his daughter Magdalen, and he haying only four daughter who are all forisfamiliate, and provided, he disponed this tenement to his oye, without an equivalent cause onerous, after contracting of 1000 merks due to Wilson; and though Jamieson did acquire right from Kier, and M'Kell from Jamieson, yet the matter became litigious before their rights.—It was answered for M'Kell, That the reason was not relevant, unless Houston, when he disponed, had been bankrupt, at least had become insolvent by the disposition. But it is offered to be proven, that the disposition was burdened with 3000 merks, to be disponed of at the disponer's pleasure, and with his own liferent, for which he got 2000 merks; so that he had then a visible estate remaining, sufficient for this and all his other debts, and had bonds and moveables, which by his testament came to L 200 Sterling, and therefore was in full capacity to gift to his oye, or any other person; so that no creditor of his, after not infifting upon diligence for so long a lime, can quarrel his disposition as fraudulent; or otherwise all gratuitous dispositions, by the most solvent persons, would become ineffectual, and the power of disposal would be bound up, as if they were inhibit, and therefore the Lords did lately find, That bonds of provision to the daughters of Mouswell, (infra h. t.) were not reducible by anterior creditors, because their father had a sufficient fortune for these portions, and all his debts.—It was replied, That bairns provisions were debitum naturale; but this was an oye whose mother was provided; and that bonds or debts were no visible estate; and it were more just that the acquirers by gratuitous dispositions should be put to seek the disponers upon their warrandice, than that creditors should be fraustrate.

The Lords found the defence against the reduction relevant, That Houston, the first disponer, had a visible estate, sufficient for all his debts the time he disponed, whether by infeftments, moveables, or bonds.

Fol. Dic. v. 1. p. 68. Stair, v. 2. p. 795.