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. XV.

Of Alienations to singular Successors.

Crawford
v.
Ker

Date: 24 January 1680
Case No. No 118.

A disposition by a man to his brother-in-law was found null, unless the cause onerous were instructed; and in a reduction against an onerous purchaser from the brother-in-law, the purchaser found obliged to instruct the onerous cause, it appearing from his own rights that his author was a conjunct person.

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Andrew Crawford having apprised some tenements in Glasgow from Mungo Matthie, pursues the tenants for their duties. Compearance is made for James Ker, who produceth an anterior disposition by Mungo Matthie to James Wilson, and by James Wilson to Ker, with infeftment conform, and alleged that he had the prior and better right.—The pursuer answered, That the right by Matthie the common author did bear Wilson to be Mathie's good-brother, so that the narrative in the disposition proves not the onerous cause; and therefore law esteems it as a gratuitous deed between conjunct persons, and so is null by the act of Parliament 1621.—It was replied for Ker, That by that same act of Parliament, rights acquired for a just price from the conjunct or confident person, are valid to a singular successor not partaking of the fraud; and therefore Ker's right from Wilson bearing an equivalent price paid, which the narrative of Ker's disposition sufficiently proves, Ker is secure, and needs not prove the onerous cause of Wilson's disposition, which he cannot do, it having been more than 20 years since that disposition.—It was duplied for Crawford, That the clause founded upon doth not bear, that third parties acquiring from conjunct persons should be secure; for though in the first clause, rights granted to conjunct or confident persons without a cause onerous, are declared null as to anterior creditors, yet the subsequent clause doth not bear, that purchasers from conjunct persons shall be secured, but only that purchasers from the interposed person shall be secure, not being partakers of the fraud, which indeed was a just and necessary exception; but purchasers from conjunct persons cannot be free of partaking of the fraud, unless they know and can instruct the cause onerous betwixt the conjunct persons, seeing the law allows not, that the narratives betwixt conjunct persons should instruct the cause onerous narrated, but it must be instructed aliunde; which conjunct persons the Lords have never extended further than to parents and children, brothers and good-brothers, uncles and nephews; and in this case the very disposition purchased by Ker, bears Wilson his author to be good-brother to Matthie the disponer; so that Ker could not be ignorant of their near conjunction, and so could be in no better case than Wilson his author, seeing his right acquired put him in mala fide to purchase from a good-brother, so designed in the disposition, without taking with the disposition, the instructions of the cause onerous.

The Lords found the disposition by Mathie, to Wilson his good-brother, null by the act of Parliament, unless the cause onerous were instructed; and that Ker, by the tenor of Wilson's disposition, purchased by him, behoved to instruct the cause onerous of Wilson's disposition, and was not secured by the clause in the act of Parliament, in favours of purchasers bona fide from intrusted persons, which doth not extend to purchasers knowing their author to be conjunct to the disponer in the degrees of conjunction aforesaid.

Fol. Dic. v. 1. p. 74. Stair, v. 2. p. 747. *** Fountainhall remarks the same case:

There was a difficult point decided betwixt Ker, Matthie, and Crawford, One dispones lands to his brother-in-law, who had married his sister, whereon he is infeft publicly, and in possession: A creditor of the disponee apprises these lands from him, and is infeft; and betwixt him and his author there is 28 years peaceable possession. Long after this apprising, a creditor to him who had disponed the lands apprises them, and in a competition betwixt these two apprisers, (Pitmedden having reported) “the Lords preferred the posterior appriser, because he had apprised from the disponer; unless the appriser from him who got the disposition will instruct the onerous cause of his author's rights, otherwise than by the narrative of his disposition: because, being inter conjunctas personas, law presumes it simulate, unless the onerous cause be instructed.” This interlocutor offended many, and the Lords resolved to re-consider it: For, 1mo, What if he had paid him money for it over the table? or, 2do, That they had retired and cancelled the accounts, (they being both merchants), how could the preceding onerous cause be proven? 3tio, An appriser, who is a singular successor, cannot be master of the writs by which the onerosity of his author's disposition can be instructed, especially now after 28 years, and that they have peaceably possest during all that time. 4to, Some thought brethren-in-law not so near conjunct persons; yet they were found even before this conjunct as to the design of the act of Parliament 1621 against bankrupts. See M'Kenzie's Observ. on the said act.

The Lords afterwards mitigated this interlocutor.

Fountainhall, v. 1. p. 76.