Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION V.

Accepting a Disposition with the Burden of Debts.

Anne Martin, Spouse to James Marnoch, Pursuer,
v.
James Grahame in Livingston's Yards, Defender

Date: 12 December 1770
Case No. No 217.

Passive title, if incurred by accepting a general disposition, burdened with payment of debts.

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In 1764, the succession to the estate of Mulderg opened to Mrs M'Culloch, who had that year executed a disposition of all her heritable and moveable estate, and, particularly, an adjudication of the estate of Mulderg, for L. 10,186 Scots, in, favour of James Grahame, her cousin, reserving her own liferent of the premises, and a power and faculty, at any time in her life, etiam in articulo mortis, to bequeath or devise L. 200 Sterling, by a writing under her hand, to any person she might think fit; declaring also, that these presents were granted and accepted by the said James Grahame, under burden of the payment of all her just debts, and of the said sum of L. 200, if the faculty should be exercised.

Mrs M'Culloch had been under obligations to the pursuer; and, on the 29th October 1764, she granted a bond, binding and obliging “her heirs, executors, and successors, at and against the term of Martinmas 1765, to pay to the said Anne Martin, for her liferent use, and to the said William Marnoch, his heirs and assignees in fee, the sum of L. 50 Sterling, with L. 10 penalty, in case of failzie.”

In December 1764, Mrs M'Culloch executed another disposition, whereby she conveyed to James Grahame the adjudication which she held over the estate of Mulderg, reserving her own liferent, and discharging the faculty to bequeath L. 200, in so far as concerned the said adjudication, &c. Mrs M'Culloch having soon thereafter died, James Grahame disposed of her household-furniture, and intromitted with what effects she left; and the pursuer having brought an action against him, as representing Mrs M'Culloch, for payment of sundry bills accepted by her for cash, &c. furnished her, and for payment of the bond for L. 50, Mr Grahame at first denied the passive titles, but at length allowed decreet to pass against him for the bills.

As to the conclusion for payment of the bond, the Lord Ordinary, upon advising memorials, pronounced an interlocutor, finding, “That the defender having accepted of a general disposition from the deceased Margaret M'Culloch, of all her heritable and moveable subjects, pertaining, or that shall pertain to her at the time of her decease, under a reserved power to bequeath and devise the sum of L. 200 Sterling to any person she might think fit, and under the burden of all her just and lawful debts, contracted, or to be contracted, is bound to pay the sum of L. 50 Sterling, contained in a bond thereafter granted by the said defunct to the pursuer, Anne Martin, in liferent, and to William Marnoch, her son, in fee, with annualrents and penalty, in terms of the said bond.”

In a reclaiming petition, James Grahame pleaded,

That he ought not to be personally liable in payment of this bond; for, as he had not hitherto taken any benefit from the disposition mentioned, he could not be held as having accepted of it, so as to subject him in a passive title, or bind him personally to pay the granter's debts. As in this case, he had only accepted a disposition to a particular subject, burdened with debts and a reserved power, he, of course, represented the granter only in the subject disponed; and hence he did not thereby incur an universal representation, nor could be further liable than in valorem of that subject. He was precisely in a case similar to that of an executor confirmed, who was not allowed to be distressed beyond the amount of the inventory; Dictionary, voce Diligence; or to that of an heir served cum beneficio inventorii, liable only to the value of the heritage given up; Stair, 8th December 1675, Thomson contra Creditors of Thin, No 6. p. 3. 3593.; 2d December 1662, Clerk contra Clerk, No 207. p. 9887.; 28th November 1738, Creditors of Crichen, No 17. p. 5348. As an heir cum beneficio could not be personally decerned against beyond his intromissions, so neither should he in the present instance; and all that could be demanded of him was, that he should grant an assignation to the adjudication, in terms of the conveyance in his own favour.

The pursuer answered,

The petitioner's doctrine, that he could not be found personally liable for this bond, would overturn the doctrine of the law as to passive representation altogether; for, upon the same principles, no one who succeeded to an estate would be bound to pay his predecessor's debts, till he had intromitted with as much of the rents as was sufficient for all demands, or had, at a distance of time thereafter, sold the estate for that purpose. The argument drawn from the situation of executors-creditors and heirs entered cum beneficio inventartii, could not aid the question; the rules, as to these, were introduced for the benefit of the creditors; it would be hard to make them personally liable where they had not intromitted; but this had no resemblance to the case of the petitioner, who, knowing his risk, had willingly accepted a disposition, with all the burdens it contained.

It was agreed upon the Bench, That the acceptance of a disposition, under the burden of debts, &c. created a passive title; but as the rigour of passive titles was now much relaxed, a doubt was entertained, if the defender could be made liable ultra valorem of his intromission. As these were not fully explained, a remit was made to the Lord Ordinary, to hear parties farther thereon.

Lord Ordinary, Pitfour. For Martin, S. Fraser. For Grahame, Rae. Clerk, Kilpatrick. Fac. Col. No 58. p. 172.