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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Poor Agnes Watson v. John Wood's Heir
Date: 30 December 1704
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Poor Agnes Watson against the Heir of Mr John Wood, late minister at St Andrew's. Mr John Wood being a creditor to Carstairs of Kilconquhar, and being about to lead an adjudication, several other creditors disponed their sums to him, on his backbond, that they might be all included in one diligence; and, amongst the rest, Agnes Watson assigns him to 500 merks of principal owing to her, and takes his backbond to be countable and to denude, effeiring to her interest. Mr John finding the lands incumbered, and prior adjudications near expired, where he could not have the benefit of coming in pari passu, he sells a part of the lands; and with the price transacts and acquires in these preferable adjudications; and the other creditors, for whom he had done diligence, accept of a proportion of their sums, and agree with him; only the said Agnes pursues him to implement his backbond, and denude. He offers a disposition to the remainder of the lands unsold, with the burden of the prior rights he had made, and excepting them from the warrandice.
She Objects,—I am not bound to accept any such disposition now; but you are simply liable for my sum, because you have violated your trust by alienating a part of the lands without my consent; and res is no more integra, seeing I have a proportional share of the whole lands adjudged, which you, by your alienation, have put out of your power to give me. Therefore, loco facti imprœstabilis, succedit damnum et interesse, which is to pay me my debt, cum omni causa; as the Lords have oft found, 18th July 1672, Watson; and in 1695, between Christian Salton and Andrew Crawfurd; as also in the case of Carmichael of Maulsley and Sir Charles Hay; and, 5th January 1675, the Earl of Northesk against the L. of Pittarrow.
Answered,—He lent his name to her diligence out of mere kindness, to hold in expenses. He has made no benefit by his right, but what he offers to communicate to her; he made no voluntary transaction but what necessity compelled him to; and, if he had not acquired these prior rights, she had got nothing; and what he did was utiliter gestum, for the behoof of her and all the rest of the creditors, the design of such trusts being only to procure payment to the creditors in the readiest manner; and therefore his sale of lands to that end was no prevarication nor breach of trust. And the decisions founded on are in a quite different case from this: For, there, they had voluntarily denuded themselves in favour of some confidant, to the behoof of the apparent heir, and so put them to debate with a durior adversarius; but here he was under a necessity either to purge these prior rights, or to lose all.
The Lords thought there was a great difference betwixt voluntary transactions and this, which seemed to be necessary, and proved so beneficial and profitable to all his constituents. And though, in strict form, he should have intimated to her, by way of instrument, and required her consent to the agreement, yet, seeing that prior adjudication would have excluded them both, the Lords, before answer, allowed trial to be taken what was the value of the right acquired, and of the lands sold, and what she would have made of her adjudication if she had been assigned to her share of it: to the effect it might appear if the bargain he made was profitable or not; and if she could crave any more but her share and proportion of the same, effeiring to her sum.
