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Scottish Court of Session Decisions >>
Barclay v Gemmil. [1731] Mor 10245 (12 February 1731)
URL: http://www.bailii.org/scot/cases/ScotCS/1731/Mor2410245-066.html Cite as:
[1731] Mor 10245
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A father disponed his estate to his son with the burden of 5000 merks to his creditors, “conform to bonds granted to them.” After he was denuded, he contracted several debts, for which he granted infeftments of annualrents, upon the lands formerly disponed to his son. In a competition betwixt a personal creditor for 1000 merks, prior to the disposition, and these annualrenters; it was pleaded, 1mo, That, by the son's infeftment, the father was denuded, and had it not in his power to lay any new burden upon the estate, over and above what he had laid upon it in favours of his creditors, existing at the time of the disposition; and if the debts did not amount to 5000 merks, it was so much gain to the son. 2do, Supposing this clause could be understood as a faculty, impowering the father to grant new securities upon the estate, so far as the 5000 merks was not exhausted by prior debts, still the debts, such as were existing before the disposition, were made real burdens upon the estate, equally as if they had been specially mentioned in the infeftment, which must prefer them to all posterior debts, though made real upon the estate by infeftment. It was found, that no debts posterior to the disposition, could come in competition with the debts prior to the same. See Appendix.
