Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. VI.

What is to be considered such a separate Estate as will bar Reduction of a Gratuitous Alienation.

Children of Mouswell
v.
Duke of Queensberry

Date: 20 July 1688
Case No. No 58.

Where a person had exhausted his land estate say gratuitous infeftments, it was not sustained to bar reduction, that the granter had a sufficient personal estate at the time of granting. Creditors were found not obliged to expiscate a latent moveable estate.

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The Laird of Mouswell, who was owing several debts, disponed the fee of his estate to his son, in his contract of marriage, reserving power to burden the same with 18,000 merks, for providing the rest of his children, and doing his other affairs; and thereafter gave bonds of provision relative to the reservation in favours of eight children, extending in the whole to 10,000 merks, with a precept of sasine, whereupon the children were infeft base. After the father's death, the eldest son granted bonds of corroboration to the father's anterior creditors, who thereupon comprised and were infeft, but not on the father's bond; and having raised reduction of the children's bonds of provision upon the act of Parliament 1621:

Alleged for the children:—That the pursuers were only creditors by a clause of relief of cautionry for the father, and actio was not nata till distress in the year 1666, whereas the children's bond and infeftment was in the 1654; and there being two liferent infeftments of annualrent in favours of two ladies, preferable to the creditors, which, with two apprisings for bygones thereof, did near exhaust the fee, and was not quarrellable upon the 1621.

1. The Lords, in respect the cautioners before distress had not interest to secure themselves In the estate, found the see should only come in computo, in quantum it exceeded the liferent and apprisings in the year 1664; and found that the liferents ought to be computed according to the whole time they lasted.

Alleged for the children: That the father had a sufficient estate the time of granting their provisions, viz. a wood worth 10,000 merks, and several personal bonds and securities, the time of his granting the bonds of provision; and also an estate in land about Dumfries. It was answered for the creditors, That it was not in the father's power to secure children's provisions, or posterior gratuitous debts to strangers upon his lands, and leave his anterior creditors, for onerous causes, to seek their payment off the personal estate, which is subject to many accidents by irresponsal debtors, in the bonds, or the father's own escheat, which are not obvious to the notice of creditors, as the case of lands, which is discoverable from the registers; and for that same reason creditors ought not to be left to left cutting of woods, or to discuss controverted titles of lands; and though Mouswell was in possession of lands about Dumfries, his right was but a trust for the behoof of Mr Rome his brother-in-law, whose creditors had apprised it, and were in possession before the 1664; and 'tis just that creditors, in a competition with children, be placed upon the best and surest part of the estate.

Replied for the children:—The father having a sufficient personal estate or goods, the time of granting their provisions, cannot be said to be bankrupt; and they are bound to say no more in defence of their rights.

2. The Lords found, That the father could not secure the children's provisions by infeftment upon the land estate, and leave the creditors to expiscate and seek for the moveable estate; and found, that the pursuer ought to allege and prove, that Mouswell the debtor, had a valid right to the lands about Dumfries, and was in possession thereof the time of granting the provisions; and that possession alone was not sufficient.

Fol. Dic. v. 1. p. 69. Harcarse, (Bonds.) No 226. p. 53.