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.

Deas
v.
Fullerton

Date: 7 December 1710
Case No. No 50.

A gratuitous assignation to a conjuct person, a few days before the granter's death, was reduced at the instance of a creditor of the defunct, though proof was offered that he was solvent at the time.

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The deceased Captain Fullerton having some arrears owing him in the commissioners of the equivalent's hands, and being debtor to Mr James Deas writer, in L. 30 Sterling, he confirms himself executor-creditor to him for affecting that sum; and pursuing for payment, they suspend on double poinding, that they are likewise distressed by John Fullerton of Auchinhall, claiming right to the same debt by virtue of an assignation he had thereto from the Captain, and duly intimated. Whereupon a competition arising, it was contended for Deas (who repeated a reduction of the said assignation) that he behoved to be preferred, because the assignation was a gratuitous deed betwixt near relations, after the contracting of his debt, and was condemned by its own narrative expressly bearing for love and favour, which can never be otherwise considered, than as a mere donation and a testamentary legacy, being only a few days before his death, and can never compete with a lawful creditor confirming the subject.—Answered, The act of Parliament 1621 annuls only deeds done without a just, true, and necessary cause; whereas here it bore not only for love and favour, but also for other causes and considerations moving him, which words must import something; and in fortification thereof, he offered to prove onerous causes for supporting the said assignation; and that this has been sustained, appears from Sir George M'Kenzie's observations on that act, where he cites January 1669, Lady Brae contra Chisholm*, and the case of Napier contra Ardmoir†, whence he infers, that verba narrativa probant tantum præsumptive contra proferentum, and may be further astructed and adminiculated; and for his relation, the cedent was only his cousin-germam, and there is no decision finding that remote degree of blood to fall under the act of Parliament.—Replied, No law ever allowed a man to impugn the verity of his own writ, and to adduce an extrinfic probation to canvel the faith of its own narrative; for that were probatio contraria scripto; and who would either give or receive a deed, bearing expressly love and favour, if there were truly any onerous cause at bottom to support it; and as to the decisions, where they related to onerous causes in the general, there the Lords permitted them to condescend particularly what they were; but here there is neither shadow nor pretence, to compete with an anterior lawful creditor, who has duly affected the subject.——The Lords preferred the executor-creditor, and reduced the assignation not simply, but in so far as prejudged him.—Then he insisted on a second ground of preference, that his cedent had, at the time of his making that assignation, estate either heritable or moveable, more than sufficient to pay all his debts; and therefore his assignation, though gratuitous, can never be quarrelled, unless you prove the granter was insolvent at the time of his making thereof; for no law hinders a man to gratify his friends and relations, if he have a clear visible accessible estate to pay all his creditors; and it were a great embargo on the freedom of property, if a small debt hindered a man of an opulent fortune to grant voluntary rights, where there is no diligence to interrupt him; and the creditor sibi imputet, if he has been in mora to affect his estate, and by negligence has suffered his circumstances to turn worse; for sibi debuit vigilare; and thus the Lords found, 30th June 1675, Clerk contra Stewart, No 46. p. 917.; 11th December 1679, the Creditors of Douglas of Mousewell contra the Children, (infra h. t.); 22d July 1680, Grant†; and 10th November 1680, Mitchel contra Jamieson and Wilkie†.—Answered, That Mr Deas has discussed the Captain's sister, his heir of line, and could recover nothing; and Auchinhall the competitor is his heir-male, and has right to any estate the defunct

* Stair, v. 1. p. 591. voce Husband & Wife.

† Examine General List of Names.

left; and it is more just he should be at the trouble and expence of seeking out his hidden desperate debts, than to put creditors to expiscations of searching out his effects per omnes regni angulos; and if it be a visible accessible estate, he is willing, on payment, to assign him to his debt, for his readier affecting thereof; and he knows better where to find it than Mr Deas, a stranger, can. And the cases cited were where the parties were in possession, or had uplifted the subject in controversy; but here the arrears are still extant unuplifted, and in the equivalent's hand; and the debate is in acquirendo, where the executor-creditor is undoubtedly preferable to a gratuitous assignee, it being more reasonable he should want his legacy, than Mr Deas lose his just debt.——The Lords likewise repelled this second ground and preferred the executor-creditor. See Proof.

Fol. Dic. v. 1. p. 68. Fountainhall, v. 2. p. 604.