Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. VII.

Effect of Fraud - of Force and Fear - of Simulation of a Gift of Escheat - of Spuilzie - of Pactum contra Fidem - of Minority - of Reduction ex capite lecti - of Donatio inter Virum et Uxorem - of Payment to an Adjudger.

Countess of Caithness, and Lady Dorothea Primrose, and the Creditors Adjudgers from the Earl of Roseberrie, Competing

Date: 8 November 1744
Case No. No 103.

In what cases exceptions competent against the debtor are competent against the adjudger from him.

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The deceased Archibald Earl of Roseberrie disponed all his lands and other heritable subjects, excepting his entailed estate, as also his whole moveables, in favour of his four younger children, John, and the Ladies Mary, Margaret, and Dorothea, equally amongst them. But as the granter was by every body believed to have been upon death-bed at the date of this deed, and had also left great debts, the younger children transacted with their brother the now Earl of Roseberrie, renouncing the foresaid disposition, and accepting of a certain provision in full of all they could ask in and through their father's decease. But as the Ladies Margaret and Dorothea were minors, and the Earl their brother was their curator at the time, this transaction was, so far as concerned their interest, thereafter reduced. And as, by that time it came to be discovered, that, subsequent to the date of the disposition by the late Earl, he had been seen walking at the Cross of Edinburgh at mid-day, where there is a constant market, by stands, &c.; they, upon a proof thereof, prevailed in a declarator of liege poustie.

While the transaction stood, the present Earl had made up titles as heir to his father, and disposed of great part of the heritable subjects; and the purchasers were safe. But as there were still certain of the heritable subjects remaining in medio, affected with adjudications at the instance of the present Earl's Creditors, the said Ladies, Margaret and Dorothea, brought a declarator, wherein they insisted to have it found, that the Earl their brother having intromitted with more than the half of the heritable succession which belonged to him in the right of John and Lady Mary, the whole that remained belonged to them the pursuers.

But the Lords found, “That, in competition with the Earl's Creditors who have led adjudications, the pursuers could have no preference upon heritable subjects still extant undisposed of, for more than their equal half of these particular subject.”

As the Earl became debtor to the pursuers by his disposing of more than his own half, he would have been personali objectione barred from any interest in the extant subjects. But as the Earl was not creditor to the pursuers in any thing, but joint proprietor with them in the subjects in question, and that his interest of property was not eo ipso extinguished by his becoming debtor, the adjudgers from him could not be affected by the personal exception competent against him. For the maxim, that every exception competent against the debtor, is competent against an adjudger, holds only true of objections of extinction; those and those only competent against the cedent, are competent also against the assignee; but every exception that may hinder the cedent to draw, will not be competent against the assignee.

And, whereas it was urged by some, from the analogy of the actio familiæ erciscundæ in the Roman law, that one of the heirs having got his share out of any subject, neither he nor his creditors had any further claim; the answer was, that the system of our law is in that very different from the Roman law; for that with us there is no such thing as the actio familiæ erciscundæ, which among the Romans proceeded upon the notion of the hæreditas being an universitas, without regard to the difference between heritable and moveable subjects, and of a quasi contract among the heirs that any one's intromission with any subject, should impute in his part of the universitas; and as every thing was allodial, it made no odds, whether one of the heirs got one subject equal to his share of the whole, or his share of each subject; a notion very different from ours, who have no other action for division among heirs, but that of communi dividendo, as the heirs portioners succeed each to a share of each individual subject, insomuch that it is not in the power of the Court to adjudge one subject to one, and another subject to another. Suppose the heritage to consist of lands of different holdings of the same or of different superiors, each of the superiors must have each of the heirs his vassal, and that in the several holdings, who again must separate their interests by a brief of division, which is the actio communi dividundo; and this being the system of our law, one's intromitting with more than his share of one of the subjects can never extinguish his interest in the other.

Kilkerran, (Personal and Real.) No 4. p. 384.