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Scottish Court of Session Decisions >>
Henry Blyth v James Lawson. [1682] Mor 9742 (3 November 1682)
URL: http://www.bailii.org/scot/cases/ScotCS/1682/Mor2309742-087.html Cite as:
[1682] Mor 9742
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Mr Henry Blyth being a creditor of umquhile James Lawson of Brother-stones, intents process against James Lawson, as lawfully charged to enter heir to umquhile James Lawson, his father, the debtor, and as he who being liable to his brother and sister for L. 1000, and also, as having granted bond to one Dunlop for a certain sum of money, upon both which grounds, there was a comprising of his father's lands of Brotherstones led against him; the ground of this action was, that he had suffered his father's estate to be comprised for his own debt, and so Blyth, a creditor of the father's, was secluded. It was alleged for the defender, That the Earl of Nithsdale's practique (supra) was only in the case where bonds were granted by the apparent heir, whereupon comprising of the defunct's estate was deduced for the heir's behoof; but, in this case, the comprising was not to the defender's behoof, neither has the pursuer done diligence to affect the estate debito tempore. The Lords found, that, albeit there was no fraud nor dole, and that the comprising was not to his own behoof, yet that the defender ought to be liable to the pursuer's debt, so far as the sum contained in the apprising might extend to; or, otherways, he ought to purge the said apprising, to the effect that the pursuer, who was the father's creditor, might have access to the lands comprised, which was the father's estate, without being incumbered with the foresaid comprising, which proceeded upon the son's debt.
Fol. Dic. v. 2. p. 33. P. Falconer, No 23. p. 12.*** Harcarse reports this case.
1682. December.—An apparent heir having granted a bond for a small sum, whereupon his predecessor's estate was apprised from him, as specially charged to enter heir; the apprising happened to expire, and the said apparent heir being charged to enter heir at another creditor's instance, he offered to renounce.
It was alleged for the creditor, That res not being integra, he cannot renounce, till he purge the land of the expired apprising, whereby a great estate is carried away for an inconsiderable sum.
Answered for the apparent heir, That he was willing to pay the sum contained in the bond, on which the apprising proceeded, which had not expired, if the pursuer had redeemed within the legal; and so per cum stetit.
The Lords repelled the apparent heir's answer, and found, that he ought to purge the apprising, or be liable to a sum equivalent to the worth of the land.
