Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION IV.

Private Deed, how far probative.
Subject_3 SECT. I.

If probative of its Onerous Cause against Creditors and Donatars of Escheat.

Thomas Boswall, Writer in Edinburgh,
v.
Margaret Arnot

Date: 7 February 1759
Case No. No 468.

Narrative of a deed inter conjunctus does not prove onerosity.

A personal bond, bearing an exclusion of assignees, cannot be gratuitously assigned.

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Robert Paterson, Commissary-clerk of Peebles, on the 6th June 1700, granted bond to Sir Hugh Paterson of Bannockburn for 2000 merks; and Sir Hugh, by his back-bond, declared, “That the bond was granted to him in trust, for behoof of Mary and Margaret Patersons and obliged himself to make the same forthcoming to them, their heirs and executors, secluding their assignees.”

Mary Paterson married Andrew Dick, and by him was mother to another Andrew. Margaret died unmarried.

Margaret, in May 1708, executed a disposition omnium bonorum, to and in favour of her sister Mary, and Andrew Dick her husband, and their heirs, executors, or assignees. This deed bore to be granted “for certain sums of money advanced for the granter by her sister Mary and her husband, and for certain other good deeds, onerous causes, and considerations, done and performed by them to her.” It conveyed all the granter's effects, debts, &c. per aversionem, without any specification, and bore no reservation of a liferent.

Margaret lived about six years after granting the disposition, and upon her death, Mary, her sister, was confirmed executrix qua nearest of kin to her; but under express protestation, “That the confirmation should not be in prejudice of the aforesaid general disposition.”

Soon after the confirmation, Sir Hugh Paterson, the son and representative of the original trustee, granted a retrocession of the bond above-mentioned to Mary Paterson, as having right to her sister's half as executrix to her. A process was then brought, and decreet obtained, in the names of the wife, and the husband, for his interest, against Hugh Paterson, the son and representative of the original debtor; and in the 1718, Hugh granted to the wife and her husband a bond of corroboration, by which he conveyed, in security of this debt, an heritable debt belonging to him upon some houses in Canongate. But a few days after obtaining this additional security, Andrew Dick the husband did, without his wife's concurrence, grant a back-bond, restricting the debt corroborated to 2000 merks, and interest from Candlemas then next, by which a great many years' annualrents were discharged.

Andrew Dick, the husband, afterwards executed sundry deeds and settlements relative to this debt, in quality of absolute fiar of it. But after his death and that of his wife, Andrew Dick, their eldest son, made up a title as heir to his mother, and thereupon disponed the whole debt to Thomas Boswal. Margret Arnot, as having right from Hugh Paterson, the debtor, to his heritable debt above-mentioned, burdened with the security he had given to Mary Paterson, insisted to have that security restricted in terms of Andrew Dick's back-bond.

Pleaded for Boswal; Dick the husband had no right of this debt vested in him; and consequently could not habily restrict it. For, 1mo, Mary Paterson was originally creditor in one half of the debt, and upon not sister Margaret's death, she succeeded to the other half. Margaret's general disposition to Mary and her husband could not vest the fee of any part of the debt in the husband; because, by the tenor of Sir Hugh Paterson's back-bond, it was provided to the two sisters, secluding their assignees. Besides, 2do, The confirmation of Mary, as executrix qua nearest of kin to her sister, with the subsequent deeds and diligence executed in the same style, abundantly prove the sense of the husband himself at that time, that he had no good right under the disposition; and such confirmation having at any rate vested the total right of the debt in the wife, which was afterwards made heritable in her person, her son properly made up his titles as heir to her, and effectually conveyed the whole to Mr Boswal, unaffectable by the deeds of his father, whom he did not represent.

Answered for Arnot; 1mo, Mary Paterson could at the utmost only have right to the fee of three-fourths of the debt, viz. two-fourths in her own right, and another fourth in virtue of the general disposition; which being a conveyance of a subject then moveable, vested the fee equally in the husband and wife, and consequently gave him right to the remaining fourth. The seclusion of assignees in Sir Hugh Paterson's back-bond, is no more than a mutual substitution, which might be defeated for onerous and even for rational causes; as was found in several cases collected in the Dictionary, Title, Implied Condition; and 22d December 1752, Wauchope contra Gibson, No 57. p. 4404. The disposition proves itself to have been made for onerous causes, not only by the narrative, but by conveying the subjects de præsenti, and bearing absolute warrandice; and consequently was a valid alteration of the substitution as to the last fourth of the debt.

2do, The confirmation of Mary Paterson, as executrix qua nearest of kin, did not imply any repudiation of the general disposition, as a protest to the contrary was therein contained. The title of executrix was taken out to the wife alone, as nearest of kin; because, according to the course of decisions at that time, (though since altered), the nearest in kin was in competition preferred to the office before a general disponee; and the deeds the husband afterwards executed, shewed his apprehension of the subsistence of his right as fiar, notwithstanding that confirmation.

Replied for Boswal; The general disposition having been granted inter conjunctos, its narrative does not prove the onerosity; and being a total conveyance of all the granter's effects, upon which nothing followed till her death, at the distance of six years, there can be no doubt of its having been gratuitous; and consequently not sufficient in law to avoid the seclusion of assignees in the original right.

The Lords found, “That the back-bond by Sir Hugh Paterson, bearing an exclusion of assignees, the right thereof was legally vested in the person of the two sisters, and could not be assigned gratuitously to the prejudice of Mary Paterson the surviving sister; and that the same right was carried to and properly completed in the person of the said Mary Paterson, by the confirmation in her favour; and that therefore the obligation to Hugh Paterson, founded on by Margaret Arnot, could not be available to her in the present question.”

For Boswal, Rae. Act. Maclaurin. Fol. Dic. v. 4. p. 167. Fac. Col. No 162. p. 288.