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Scottish Court of Session Decisions >>
Younger Children of Henderson v Creditors. [1760] Mor 10179 (7 August 1760)
URL: http://www.bailii.org/scot/cases/ScotCS/1760/Mor2410179-018.html Cite as:
[1760] Mor 10179
Reversions. - Eiks to Reversions. - Reserved Faculty to Burden in a Disposition of Lands. - Arrears of Interest of an heritable Debt.
Younger Children of Henderson v. Creditors
Date: 7 August 1760 Case No. No 18.
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A reserved faculty to burden with a certain sum, in a disposition of lands by a father to his eldest son, being exercised afterwards by way of legacy or provision to the younger children; the son having contracted debts, his creditors adjudged the lands, and one of them completed his right by charter and infeftment. In a competition after the father's death, the younger children, who also adjudged, insisted for a preference, on this ground, that the eldest son's right was qualified, and that the adjudications against him could not carry the reserved right in the father, which was neither in hæreditate jacente of him, nor disponed to his eldest son. Answered, A personal deed of the father, the disponer, is not entitled to compete with creditors or purchasers who stand infeft by the proprietor. The father, in virtue of his reserved faculty, could not have a greater power than if he had reserved a part of the fee; and as, in that case, his personal deeds could not affect the lands, nor compete with real rights granted by the heir after his own fee is at an end; so it is equally inconsistent to suppose, that a personal bond or legacy granted by one who has a reserved faculty should affect the land. Such deed cannot be discovered from any record; and it would be putting lands extra commercium to give it the effect pleaded for by the legatees.—The Lords found, that the younger children were only preferable for their provision according to their diligence. See Appendix.
