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Scottish Court of Session Decisions >>
Children of Lord Kimmergham v His Creditors. [1732] Mor 2802 (00 July 1732)
URL: http://www.bailii.org/scot/cases/ScotCS/1732/Mor0702802-044.html Cite as:
[1732] Mor 2802
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A general assignation of moveables, with a power to intromit and enter to possession immediately upon the granter's decease, though possession be apprehended accordingly, is not sustained in our law as a transmission of the property, but these goods must be confirmed; and, without confirmation, the disposition, though clothed with possession, will be found no better right than a jus crediti for the value. The reason is, that the power to apprehend possession is a procuratory, quod perit morte mandantis, as procuratories did with regard to land rights before the act of Parliament; and, if confirmation be necessary, the assignee can stand upon no better footing than any other creditor. Thus, an assignation, in a contract of marriage to the wife, of the whole household plenishing that should belong to the husband the time of his decease, was found only to make the wife creditor for the value upon the implied warrandice, so as to bring her in pari passu with other creditors confirming within six months; but she was found to have no preference, though she got into the natural possession after, her husband's decease, and also confirmed the subject prior to any step of diligence by the creditors. See Service and Confirmation.
