Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION VIII.

Delivery when presumed made, and for whose Behoof.

Creditors of David Turner
v.
His Children

Date: 23 January 1783
Case No. No 243.

A person debtor for the balance of the price of lands, granted bond obliging him to pay interest of the the sum to the person from whom he purchased during his life, and at his death the principal to his children nominatim. The bond was delivered to a third party, where it remained till the seller's insolvency. Found that the fee was in the children, and could not be attached for the debts of the father.

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The Duke of Buccleuch being debtor to David Turner in the balance of the price of some heritable subjects, granted bond obliging himself to pay the legal interest of the debt to David Turner during his lifetime, and after his death to pay the principal sum to his children nominatim, and to their respective heirs. In the event of the death of the children, the bond farther provided, that the sums due to them should be exigible by two of their relations, for behoof of their issue.

This bond was delivered by the Duke's doer, not to David Turner, but to the person who had counducted the sale for him; and it remained there till some years after, when David Turner became insolvent.

A question then arose between his creditors and his children concerning the fee of this bond; when the former

Pleaded; Destinations in favour of children in bonds of borrowed money, though conceived in terms appearing to denote a divestiture of the father, as they occur in contracts to which the children are no parties, and in which they have no title to interfere, convey to them only a spes successionis. Like bonds of provision, they remain subject to revocation, and consequently to the father's debts, unless the deeds in which they are contained, have been either delivered for the children's express behoof, or put upon record, or followed with some other act equivalent to delivery. Without this, persons, after having acted while in affluence as unlimited proprietors of their funds, would have it in their power, upon their insolvency, to withdraw these from their creditors.

Answered; A bond remaining in the custody of the granter, or, which is the same thing, in the custody of those who act for him, is an incomplete deed, over which he has unlimited power; and the only difference between bonds of provision and others, is, that the former may be validated by the death of the granter, and without any delivery.

But where, in a bond of borrowed money, the right of the original creditor stands limited by the conception of the deed, in favour of a third party, no farther solemnity is requisite. The moment such a bond is delivered by the debtor, no matter to whom, it becomes an effectual and irrevocable voucher to every one favoured by it. Nor can creditors be prejudged by transactions of this sort. It cannot be imagined, that in order to defraud his own creditors, a person in affluent circumstances will be induced to divest himself of his estate.

One of the Judges seemed to be of opinion, that if the bond in question had been delivered to the father, and had remained till the bankruptcy in his custody, the fee vested in the children might have been considered to be of a revocable nature. Another, however, whose opinion was followed by the Court, observed, that although in bonds granted directly by a father to his children, the delivery in a question with the granter's creditors, must be proved by the children, the law was different in cases like the present. Without enquiring, therefore, in what manner the possessor of this bond had received it, the Lords

“Found, that the fee was in the children, and could not be attached for the debts of the father.”

Lord Ordinary, Gardenston. For the Creditors, Baillie, M'Cormick. For the Children, Geo. Wallace, Ilay Campbell. Clerk, Hume. Fol. Dic. v. 4. p. 126. Fac. Col. No 81. p. 128.