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Scottish Court of Session Decisions >>
Grant of Kirdells v Birkenburn. [1682] Mor 902 (8 December 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Mor0300902-032.html
Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. III.
Alienations in favour of Conjunct and Confident Persons.
Grant of Kirdells v. Birkenburn
Date: 8 December 1682 Case No. No 32.
A father disponed his estate to his son. A creditor of the father raised a reduction. After citation, the son made voluntary payments to others. The price was adequate; but the father being bankrupt, the son found entitled only to prefer such creditors as he had undertaken to pay, prior to the reduction.
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A father having disponed his estate to his eldest son in the year 1657; in anno 1666 a creditor of the father's raised reduction of the disposition; after which the son made voluntary payment to several other creditors out of the price; and it being found, upon probation led, that the price contained in the disposition was adequate, the pursuer insisted for payment of the debt out of the price.
Alleged for the defender: That there being no inhibition, or legal diligence against his father, at the pursuer's instance, he might pay such creditors as he thought fit.
Answered: As the father being bankrupt, could not prefer and gratify one creditor in prejudice of another's diligence; no more could the defender, his son, make any such voluntary payments after the raising of the pursuer's reduction, nor could he have the benefit of abatements given by the creditors.
The Lords found the pursuer's answer relevant; but found, That the defender might pay, after the reduction, any debt he had undertaken to pay before.
February 1683.—Grant having insisted that the defender should compt for 7000 merks, as the price of lands contained in the disposition, and value of the lands being proven not to exceed 6000 merks;
The Lords found, That the defender, as a conjunct person, needed to hold compt for that sum only, and quoad ultra was in the place of a stranger, the disposition bearing the receipt of the whole 7000 merks.
Harcarse, (Alienation.) No 131. & 133. p. 26. & 27.
