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Scottish Court of Session Decisions >>
Ferguson v Lindsay. [1678] Mor 9803 (23 July 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor2309803-131.html Cite as:
[1678] Mor 9803
The Debt must be anterior to the Disposition. - What understood to be an Anterior Debt.
Ferguson v. Lindsay
Date: 23 July 1678 Case No. No 131.
Succession lucrative was found not to be inferred by an infeftment posterior to the pursuer's debt, it being on a contract of marriage anterior to the debt.
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Thomas Ferguson pursues William Lindsay, as representing his father, for payment of his father's bond of 1600 merks, and insists against him as successor lucrative post contractum debitum, by an infeftment in lands upon his father's disposition; which infeftment is posterior to this debt, and therefore he is successor after this debt, and ex causa lucrativa. The defender answered, non relevat, unless the debt had been anterior to the disposition; for that passive title is always, understood of a successor ex causa lucrativa, quæ causa est post contractum debitum; for the infeftment is but in implement of the disposition et necessitatis, though the disposition be voluntatis. The pursuer replied, That his debt is both anterior to the infeftment, and the disposition upon which it proceeds. The defender duplied, That the disposition is not the cause of the infeftment, but a contract of marriage, disponing the same lands; and though this disposition doth not relate to the contract, yet it is presumed to be in implement thereof, and the father might have been compelled upon the contract to extend the disposition, with procuratories and precepts to complete the infeftments.
The Lords found the defence relevant, that the same lands were disponed by contract of marriage, before contracting the pursuer's debt, though this disposition and infeftment thereon was posterior to the debt.
