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Scottish Court of Session Decisions >>
Mr Zacharias Gemmil, and Others, v Robert Barclay. [1724] Mor 9830 (9 July 1724)
URL: http://www.bailii.org/scot/cases/ScotCS/1724/Mor2309830-154.html Cite as:
[1724] Mor 9830
In which circumstances intromission does or does not infer a Passive Title. - Action transmits against heirs in valorem only.
Mr Zacharias Gemmil, and Others, v. Robert Barclay
Date: 9 July 1724 Case No. No 154.
A person granted a disposition of his moveables to his wife, in which two stacks of oats and one of hay were omitted. His son, upon his father's death, sold one of the stacks for 281. 4s. Scots, and and applied the same to the payment of the funeral charges. The Lords found the intromission not relevant to subject the defender to the passive title of vitious intromission.
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Charles Barclay of Busbie, the defender's father, granted a disposition of his moveables to his wife, in which only two stacks of oats and one of hay were omitted. The defender, upon his father's death, sold one of the stacks, and granted his receipt for L. 28:4s. Scots, as part of the price, and applied the same to the payment of the funeral charges; upon which Mr Gemmil, and others of the father's creditors, insisted against him as a vitious intromitter.
It was pleaded in defence. That for so small an intromission he could not be overtaken on this passive title, especially when it appeared from the application of the sum received, that he had no intention to defraud his fathers creditors. In support of this defence, the decision, Reoch against Cowan, No 150. p. 9828, and Stark and Tam against Jolly, supra, were adduced.
It was answered for the creditors, That (as my Lord Stair observes) although intromission by strangers, who have not so easy access to embezzle defunct's moveables, must be per quasi universitatem, yet a very small intromission should be sustained against an apparent heir, who may huddle up his intromissions, and in time ascribe them to singular titles, &c. B. 3. T. 6. § 3. That there was no necessity of instructing fraud in such an intromission, but the bare contraction of moveables by the heir was sufficient; and if intromission to the value of L. 28 should not subject him as well as a thousand, then no rule could be fixed. As to the decisions it was answered, That they were with respect to the uplifting of small sums due to a defunct, where the danger was not near so great, because the debt would remain due if uplifted without a title, and likewise a legal evidence might be had against the intromitter, viz. his discharge to the debtor; whereas the ipsa corpora of moveables may be easily embezzled, and no vestige remain.
Replied, That as this passive title was not designed for a snare, the intention and animus of the party was to be observed, rather than the fact; and it could not be supposed, that in the present case the heir, by selling of a stack of corn, designed either to defraud the creditors or enrich himself; and as my Lord Stair says, B. 3. T. 9. § 7. “Intromission with one thing, or a small thing, will not infer this passive title.”
“The Lords found the intromission being with one particular of small value, not relevant to subject the defender to the passive title of vitious intromission.”
Reporter, Lord Newhall.Act. And. Macdowl et H. Dalrymple jun.Alt. Pat. Leith.Clerk, Dalrymple.
Fol. Dic. v. 4. p. 46. Edgar, p. 75.
