Scottish Court of Session Decisions

Subject_1 IMPLIED ASSIGNATION.
Subject_2 SECT. I.

The principal conveyed, accessories follow. Conveyance of a subject to which the disponer has no right.

James Neil, Merchant in Ayr,
v.
John Campbell of Skerrington

Date: 14 December 1756
Case No. No 13.

Sale of an estate with all right in the seller, does not convey a debt in his person against the estate.

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Cathcart of Drumjoan was debtor to M'Rae in a certain sum by bond.

He died leaving three heirs portioners, the said M'Rae, William Campbell, and Abigail Rankin, mother to the defender.

In the 1727, he had disponed his estate to Lord Cathcart, reserving a power to alter; and, in consequence of that power, some short time before his death, he made a settlement of his whole estate upon the defender's mother.

Lord Cathcart got a disposition from M'Rae and Campbell, the other heirs-portioners, of their right of succession, and brought a reduction of Drumjoan's last settlement.

M'Rae, by his disposition to his Lordship, “as one of the apparent heirs-portioners of Cathcart of Drumjoan, sells the lands of Drumjoan, and certain other lands, with all right, which he, as one of the apparent heirs-portioners aforesaid could pretend thereto; and further assigns to him the heirship moveable, and all the moveables to which he had right as one of the nearest of kin; all which he obliges him to warrant from his own and his successor's facts and deeds allenarly; and to renew these presents, if necessary, for effectually denuding himself of the premisses, as one of the heirs-portioners foresaid.” And Lord Cathcart becomes bound to free M'Rae of all payment, hazard, and danger of any debts of the said Cathcart of Drumjoan.

Lord Cathcart's action of reduction ended in a submission and a decreet-arbitral, awarding the estates of Cathcart of Drumjoan to the defender and his mother, and obliging them to relieve Lord Cathcart of all debts due by the said Drumjoan, which may any ways affect his Lordship or the said M'Rae or Campbell, from whom he derives right as heirs-portioners foresaid.

Neil, assignee by M'Rae to the bond above mentioned, due by Drumjoan, pursued Abigail Rankin and her son for payment; and concluded, that the transaction between M'Rae and Lord Cathcart, was an emptio venditio hæreditatis; M'Rae sold to his Lordship all interest which he had in the estate, heritable and moveable, of Cathcart and Drumjoan, as one of the heirs-portioners and nearest of kin to him. This debt was no part of the right of succession sold; it did not belong to M'Rae the seller as heir-portioner, but as a creditor to Drumjoan; that therefore it was not conveyed to Lord Cathcart, who was only emptor juris hæreditarii; it is a debt subsisting in the person of M'Rae qua creditor, and conveyed to the pursuer. This is agreeable to the principles of the Roman law, L. 2. pr. and § 4. D. De Hær. vel. Act. vend. and L. 2. § 18, 19. D. eod. where the very point in question is determined.

Answered for the defender, He is no further liable for the debt than Lord Cathcart would have been. And M'Rae's disposition to his Lordship, though it does not expressly convey this debt, yet it necessarily implies a virtual conveyance of it, after which M'Rae could not have pursued his Lordship for payment, without incurring the warrandice in his disposition. A disposition of property is understood to convey every right in the person of the disponer affecting that property. Rights acquired after the date of the disposition do ipso jure accresce to the disponee. One having a right in security consenting to a disposition of the subject affected, such consent imports effectually a passing from all right in the subject. The principles of the Roman law do not apply to this case. Here was no emptio hæreditatis, which is an emptio univer sitatis lucri et damni: For, 1mo, Lord Cathcart only purchases the lands of Drumjoan, and others mentioned, without any general clause, comprehending the whole estate to which M'Rae had right as heir to Drumjoan. 2do, By the disposition, he came under no obligation to pay the whole debts of Drumjoan. The words of the obligation are, to relieve M'Rae of all payment, hazard, and danger from Drumjoan's debts; but that cannot include the debt in question; for M'Rae was in no hazard or danger from this debt in which he himself was the creditor.

“The Lords repelled the defences pleaded for the defender, and found him liable for the whole debt pursued for.”

Act. Miller, Alt. Brown. Clerk, Forbes. Fol. Dic. v. 3. p. 297. Fac. Col. No 220. p. 320.