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Scottish Court of Session Decisions >>
The Creditors of Provost Ayton v Margaret Ayton. [1784] Mor 9732 (7 July 1784)
URL: http://www.bailii.org/scot/cases/ScotCS/1784/Mor2309732-074.html Cite as:
[1784] Mor 9732
Acts of the Heir proceeding from his Connection with the Predecessor.
The Creditors of Provost Ayton v. Margaret Ayton
Date: 7 July 1784 Case No. No 74.
General service as heir of line, an universal passive title till set aside by reduction.
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Provost Ayton having been vested in an estate, in trust for Mr Colvill, Margaret Ayton, his daughter, agreed, after his death, to grant a reconveyance.
As Provost Ayton had executed a general disposition in favour of his daughter, she might have fulfilled her agreement, without the intervention of a service, or incurring an unlimited representation; but the doer of Mr Colvill, at whose expense the business was carried on, being ignorant of that circumstance, expede a general service in her behalf, as heir to her father, after which she redisponed the estate to Mr Colvill.
Some time afterwards she was pursued by the Creditors of Provost Ayton, on the ground of the service just now mentioned.
The Lord Ordinary assoilzied, “in respect there was sufficient evidence that the general service was not taken in order to vest any right of succession, but merely for the purpose of renouncing a trust, and that the pursuer declined any proof of actual intromission.’
The pursuer reclaimed; when it was
Observed on the Bench; To admit the circumstances stated in the Lord Ordinary's interlocutor as a defence, by way of exception, against the known legal consequences of a general service, would be a dangerous innovation Here however there is sufficient ground to relieve the defender, by setting aside the service altogether, in a proper action brought for that purpose.
The Lords remitted the cause to the Lord Ordinary, in order that a reduction of the service might be brought by the defender.
Lord Ordinary, Gardenston.Act. Wight.Alt. Maconochie.Clerk, Robertson.
Fol. Dic. v. 4. p. 44. Fac. Col. No 168. p. 263.
