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.

Patrick M'Dowal of Freugh
v.
William Fullerton of that Ilk and his Tutor

Date: 8 June 1714
Case No. No 462.

Found in a reduction upon the act 1621, that a cousin german was not a conjunct person.

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Robert Fullerton of Craighall, having granted an heritable bond for 2000 merks, in the year 1685, to William Fullerton his brother, upon which he was infeft in the year 1691, William, 4th February 1702, granted a bond for the like sum of 2000 merks, to Patrick M'Dowal of Freugh, containing an assignation and disposition to the foresaid heritable bond and infeftment, in security thereof, but without precept of sasine, and procuratory of resignation; and 1st June 1706, the said Patrick M'Dowal procured from the said William Fullerton, a new bond, corroborating the former bond and assignation, with a precept of sasine, whereupon he was infeft the 22d of the said month. Robert Fullerton disponed his lands of Craighall to the said William Fullerton, 3d June 1702, and the foresaid sum of 2000 merks was allowed out of the price, and expressly discharged.

William Fullerton of that ilk, acquired right by progress to two heritable bonds, granted by his authors to the said William Fullerton of Craighall, and clothed with infeftment anno 1704, whereof one was for 5700 merks, and the other for L. 1623: 13: 4d.

In a ranking of the Creditors of Fullerton of Craighall, Freugh craved to be preferred to Fullerton of that ilk, upon his right by assignation to the old heritable bond, granted by Robert Fullerton to the said William Fullerton in the year 1685, completed by infeftment in the year 1691, several years prior to the contracting of his competitor's debt.

Answered for Fullerton of that ilk, That Freugh could never compete upon his assignation to that bond; because, 1mo, Though infeftment thereon followed in the person of William Fullerton, before the date of the bonds, whereupon Fullerton of that ilk doth compete, yet before Freugh was infeft upon his assignation thereto, or that assignation made public any manner of way, by intimation or possession, the debt was extinguished by payment, or, which is the same thing, by the lands being disponed by Robert Fullerton the debtor, to William Fullerton the creditor, and that sum allowed and discharged as part of the price. 2do, Esto the debt had afterwards subsisted in the person of William Fullerton, yet it would not not accrue to Fullerton of that ilk, and support his infeftments, which were complete long before any infeftment in the person of Freugh; it being a principle in law, that wherever any person grants an infeftment, whether of property, wadset, or annualrent, all the rights standing in the person of the granter, accrue to him, and may be made use of by the obtainer of the infeftment, for the support of his right.

Replied for Freugh, 1mo, Robert Fullerton's disponing the land to his brother in this manner, and giving allowance of the 2000 merks bond as a part of the price, was a fraudulent contrivance betwixt two brothers, which could not prejudice him a lawful creditor to whom the bond had before been assigned and delivered. 2do, Albeit his right was not completed in his own person by infeftment, yet William Fullerton becoming proprietor of the lands, could not hinder Freugh at any time after to infeft himself, and when ever he took infeftment, that infeftment behoved to be drawn back ad suam causam, viz. the old infeftment 1691; for the disposition of the infeftment to him, though without a precept, gave him jus ad rem, upon which he might adjudge the said infeftment from the disponer, or his heirs, at any time. Nay, William Fullerton's becoming proprietor, is so far from extinguishing his right, that it rather strengthens it as being jus superveniens auctori. 3tio, Freugh by William Fullerton's assignation to him, of Robert Fullerton's heritable bond in 1702, became creditor to Robert Fullerton, and so hath insterest upon the act of Parliament 1621, to reduce the disposition of the property granted by the said Robert to William, in June thereafter, as a fraudulent contrivance betwixt two brothers to his prejudice, the bond to which he was assigned being thereby extinguished. 4to, Fullerton of that ilk's authors to whom the bonds he founds upon were granted, being conjunct persons, viz. cousins germans to the common debtor, he ought to instruct the onerous cause of those bonds, otherwise Freugh as creditor to the granter can reduce them upon the act of Parliament 1621; for it is the opinion of Sir George M'Kenzie upon that act, that such relations are comprehended under the general term of conjunct persons, and the narrative of the said statute bears, children, kinsmen, and allies. Now it cannot be denied, that cousin germans are near kinsmen, and our law doth not allow them to bear witness for one another.

Duplied for Fullerton of that ilk, 1mo, It is not here the question, whether William Fullerton acted fraudulently with regard to Freugh or not, in first assigning him to the heritable bond, and then extinguishing it by receiving payment, or which is the same thing, getting to sum allowed to him by the debtor, as a part of the price of the lands; Freugh may recur against William Fullerton upon the warrandice, in the manner he thinks proper. But this is certain, that Freugh having only a personal right to the heritable bond and infeftment, William Fullerton was not thereby denuded, and so the bond was extinguishable by payment made to him, the only person standing infeft, which is agreeable to the nature of redeemable rights; 4th February 1671, Wishart contra Arthur, No 3. p 9978. It is true, if the question were betwixt Freugh and Fullerton, his cedent, William Fullerton might be debarred personali objectione from founding upon this extinction; but that says nothing as to Fullerton of that ilk, a singular successor noways answerable for William Fullerton's deeds, who cannot be prejudged by his granting a bond of corroboration to Freugh, as if the old infeftment had been extinguished four years after the rights in favour of Fullerton of that ilk were completed; so that, 2do, Seeing payment made to, and a discharge by the cedent, before the assignee is infeft, doth extinguish that right, any infeftment taken, or title made up by the assignee thereafter, is but a null extinguished right, that can have no effect against singular successors, and creditors whose rights are lawfully completed by infeftment. 3tio, Freugh did not become creditor to Robert Fullerton by the assignation, the same having never been intimated or completed by infeftment before granting the disposition; for, until infeftment, the right, as hath been noticed, stood in the person of William Fullerton, who being therefore creditor the time of the disposition, granted by Robert to him, that disposition is not reducible upon the act of Parliament 1621, it being a deed in favour of the creditor, and not to his prejudice. 4to, Cousins german are not reckoned in law conjunct and confident persons, and it is a mistake to say our practice doth not allow such to be witnesses; nor doth Sir George M'Kenzie rank them in the numbers of conjunct and confident persons; he indeed states he question as debateable, and sets down some arguments that might be used for their being reputed conjunct persons, as he frequently does in other cases, contrary to his own opinion, but does not give it as his judgment, that the stasute should be so far extended; and my Lord Stair, Instit. tit. Reparation, § 15. is plainly of opinion that it should not, where he says the act has been extended to uncles and nephews, where other circumstances concurred. Now if other circumstances be necessary to make it extend to uncles and nephews, how much less can it be extended to cousins german without any such concurring circumstances, or the least suspicion, except what arises from the relation.

The Lords preferred William Fullerton of that ilk, according to the dates of his sasines, and repelled the grounds of preference pleaded for M'Dowal of Freugh.

Fol. Dic. v. 2. p. 254. Forbes, MS. p. 45.