Scottish Court of Session Decisions

Subject_1 CREDITORS OF A DEFUNCT.
Subject_2 SECT. I.

Decisions upon Act 24th, Parliament 1661.

Anne Mackay
v.
The Representatives of Colonel Hugh Mackay

Date: 15 February 1783
Case No. No 12.

A bond heritable, destinatione, was found to fall under the act 1661, c. 24.

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Anne Mackay, the second wife of William Mackay, was, by their contract of marriage, entitled to certain provisions.

Among other funds belonging to William Mackay, were two wadset rights, and a bond conceived ‘in favour of him and his (former) wife, in conjunct fee and liferent, and of the heirs-male to be procreated betwixt them, in fee.’

Those wadsets William Mackay disponed to George, his eldest son, by the prior marriage, to whom, by the conception of the bond, that right likewise was to devolve.

Within a few months after the death of William Mackay, George disponed the wadset-rights and bond to his immediate younger brother, John.

Posterior to this conveyance, Anne Mackay sued these sons of her husband, as being his representatives, for payment of her provisions; and, on the dependence of the action, used inhibition against them both.

Afterwards, John conveyed to Colonel Hugh Mackay, a creditor of his, the wadset rights and bond in security of his debt.

A competition then ensued between Anne Mackay and certain persons representing Colonel Mackay, the event of which was chiefly to depend on the effects of the conveyance by George to John, and of the inhibition used by Anne Mackay against them.

Pleaded for Anne Mackay; As the wadsets and the bond, now the subjects of competition, are both heritable rights, the last, by virtue of its destination ‘to heirs-male,’ being not less so than the first, the debts of the ancestor are still preferable upon them to those of the heir, notwithstanding the conveyance by the latter within a few months of the death of the former. Both come equally within the sanction of the statute of 1661, cap. 24. which declares, that “no right or disposition made by an apparent heir, so far as may prejudge his predecessor's creditors, shall be valid, unless it be made and granted a full year after the defunct's death.” As a creditor, therefore, of William Mackay, the father, the claims of Anne Mackay, respecting both rights alike, are to be preferred to those of any creditor of his sons. And her preference has likewise been secured by inhibition.

Answered; Nomina debitorum are not the subject of inhibition: Nor is the case altered from their becoming heritable destinatione. With respect to Mrs Mackay's preference, as a creditor of her husband, over the creditors of his heirs, the bond being a personal right, falls not under act 1661.

The Lord Ordinary reported the cause to the Court, who were clearly of opinion, that the statute 1661 applies to heritable subjects indiscriminately, whether they be such destinatione, or sua natura.

Some of the Judges denied the competency of inhibition to affect bonds heritable destinatione only. The majority, however, appeared to be of a different opinion ; though it proved unnecessary to give a direct judgment on that point, the following being the interlocutor of the Court;

‘The Lords, in respect the bond for 4000 merks, due by Lord Reay, was conveyed by George Mackay to his brother John, prior to the inhibition at the instance of Mrs Anne Mackay, repelled the grounds of preference pleaded by her upon that inhibition ; but found, that as George disponed the said bond to his brother John within five months of his father's death, the said disposition is not effectual against Anne Mackay, who was a creditor to the father, being contrary to the enactment of the second clause of the statute 1661.’

To that judgment, which was brought under review by mutual petitions and answers, the Court adhered; with this only variation, that as it had been omitted to mention, that Anne's Mackay's preference was effectual on the wadset, this omission was now supplied. See Inhibition.

Reporter, Lord Gardenstone. For Mrs Anne Mackay, Elphinston. Alt. Honyman. Clerk, Home. Fol. Dic. v. 3. p. 166. Fac. Col. No 93. p. 144.