Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

The Creditors of the deceased Robert Ross of Auchlossin, competing

Date: 24 July 1713

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In a ranking of the creditors of the deceased Robert Ross of Auchlossin, and Francis Ross, his son; Arthur Forbes, brother to the laird of Balflug, produced the contract of marriage betwixt him and Jean Ross, Robert's daughter, dated September 27, 1701; whereby Robert and Francis stood obliged conjunctly to pay to Arthur Forbes 2000 merks of tocher; and an heritable bond granted by father and son, January 2, 1703, to Arthur Forbes, in satisfaction thereof, completed by infeftment; and Nicol Ross, brother to the said Robert Ross, produced an heritable bond granted by father and son jointly to Nicol, and Margaret Leslie, his spouse, for 7500 merks of principal, dated December 24, 1702, in place of other grounds of debt formerly due to Nicol by the father: and both Arthur Forbes and Nicol Ross had timely adjudged. Which rights they contended to be sufficient ground to rank them as real creditors to Robert Ross, the father. The other creditors of Robert Ross produced a disposition and infeftment granted by him of his estate, with the burden of all his debts to his son, before the granting of these heritable bonds in favours of Arthur Forbes and Nicol Ross: and pleaded that Arthur Forbes and Nicol Ross having innovated their former security by taking heritable bonds in satisfaction thereof, from the father and son, after the father was denuded in his son's favours, with the burden of all his debts; whereby the father's creditors, at the time of the disposition, became real and preferable to all the son's creditors, and debts contracted by the father, after the disposition; and consequently preferable to Arthur Forbes and Nicol Ross, who are to be considered as the son's creditors, and ranked after the father's creditors, only from the date of the new obligations; seeing when innovation takes place, the former security falls, et etiam pignora solvuntur.

Answered for Arthur Forbes and Nicol Ross,—1. No clause in the disposition by Robert Ross to his son, (which was gratuitous, without any onerous, just, or necessary cause,) can militate against them who were lawful creditors before to the father. 2. Their heritable bonds were granted before the son's right from the father was any way public, or the seasin registered. And a latent right inter conjunctos can be of no force against true creditors; especially where the father, after granting a general disposition to his son, continued in possession till his death, whereby every person was in optima fide to contract with him, at least until the son's right appeared on record; July 2, 1673, Steil and Jackson contra Mason; February 12, 1669, Pot contra Pollock; November 28, 1679, Cathcart contra Glass; December 4, 1673, Reid contra Reid. And it can never be understood, that the father's gratuitous disposition to his own son can be more effectual to the father's creditors, than if it had been directly granted to themselves. Now he the father was not in a condition to prefer one creditor to another. 3. By our law a prior right, though innovated, may be good evidence of the antecedent onerous cause of a subsequent obligement.

The Lords found that Arthur Forbes and Nicol Ross, having bona fide accepted of the heritable bonds in place of former debts due by the father, before the father's infeftment to the son was on record; ought to be ranked as creditors of the father.

One of the Lords thought that if the anterior security was discharged, the heritable bonds granted in lieu thereof could not be ranked with those debts of the father with which the son's disposition was burdened. Another was of opinion, that whether the old security was discharged or not, the new bond was a clear innovation. A third Lord differed from the last, upon this, among other grounds, that if an heir of tailyie, tied up with a clause irritant, in case of his contracting debt, should pay an old debt contracted by the maker of the tailyie, with money borrowed from another hand, and give to the lender an heritable security upon the estate for the same; that real right would be good and effectual, notwithstanding of the clause irritant, if the new creditor could prove that his money was so applied. To which the case of the Lord Kinnaird was objected, who having, with money borrowed by himself, cleared debts that affected his estate before it was tailyied, found himself under a necessity, after advising with the best lawyers, to apply to the Parliament for empowering him to grant security, or sell land to pay off these creditors whose money had been applied to satisfy these debts with which the tailyie had been burdened. But it was answered, that in the Lord Kinnaird's case, the new creditors were not able to prove that their money was applied to the payment of the old debts. Others of the Lords supposed that a creditor taking bond from his debtor inhibited, in implement of a debt due before inhibition, the new security could not be reduced ex capite inhibitionis, if the creditor could prove that anterior onerous debt to which that security was surrogated. Another Lord delivered his opinion thus: The creditors here being ignorant not only of what had passed betwixt father and son, but also of their condition and insolvency, and having ignorantia facti given up the old securities; condictio chirographi indebite traditi was competent to them by law; so that there being just ground for calling back the securities innovated, the pretended innovation doth evanish.

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