Scottish Court of Session Decisions

Subject_1 CREDITORS OF A DEFUNCT.
Subject_2 SECT. I.

Decisions upon Act 24th, Parliament 1661.

Magistrates of Ayr
v.
Quintin Macadam

Date: 14 June 1780
Case No. No 10.

Action for setting aside rights granted by an heir within the year after the predecessor's death, endures for forty years. The second clause of the act 1661, c. 24. is not confined to rights granted by heirs in a state of apparency.

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Campbell was debtor to the burgh of Ayr. Within the year after his death, his heir made up titles, and sold lands which belonged to him. More than three years thereafter, but within forty years, the Magistrates of Ayr, for effectuating payment of the debt due to the burgh, brought a process against Macadam the purchaser, for setting aside the sale, upon the clause of the statute 1661, c. 24.

The defences insisted on by the purchaser were, 1st, That the action of reduction, not having been commenced within three years after the ancestor's death, was not now competent; and, 2dly, That the enactment only affected alienations made by heirs when in a state of apparency.

For the arguments on the first point, Taylor contra Lord Braco, No 8. p. 3128.

On the second point

The defender pleaded; The statute founded on, being of a correctory nature, and creating nullities in the titles of landed property, which are undiscoverable from the public records, ought to receive a strict interpretation. It is entitled, ‘An act concerning apparent heirs.’ The preamble sets forth, “That apparent heirs, immediately after their ancestor's death, frequently dispone their estate, in whole or in part, to the prejudice of their predecessor's creditors.” The hardship thereby imposed on the ancestor's creditors is said to arise ‘their not having it in their power to pursue the heir within the year,’ which is not applicable to the case where the heir has completed his titles by service. And the enacting clause provides, “that no disposition made by the said apparent heir shall be valid, unless made a full year after the defunct's death.”

Answered; This statute affects, in the first place, diligence by the creditors of the heir, which undoubtedly may take place whether he make up titles by service or not; and, 2dly, voluntary deeds of alienation by the heir. The title of the statute is general; and as in the first part it must be understood to extend to diligence done against the predecessor's estate after the heir is served, it must in the second be equally applicable to alienations made by heirs in that predicament.

There are in the statute itself expressions which clearly show this to have been the intention of the legislature. Thus it is said, “that apparent heirs do often, before they are served, make dispositions of their predecessor's estate.” And the reason given for the different periods fixed in the first clause is, “that it would be unjust that the apparent heir, after he is served, and retoured, and infeft, respective, should, for the full space of three years, be bound up from making rights and alienations of his predecessor's estate.”

But the defender's argument is not only contradicted by the words of the statute, but is totally adverse to its spirit. As a service may be completed by an heir, in some cases, in fifteen days after the ancestor's death, and in all cases within a period greatly short of a year; the duration of this privilege would in this manner be measured, not by the time prescribed in the statute, but by the diligence used by the heir in making up his titles.

‘The Lords repelled the defences.’

Lord Ordinary, Gardenston. Act. G. Fergusson. Alt. Rae. Clerk, Tait. Fol. Dic. v. 3. p. 166. Fac. Col. No 110. p. 206.