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.

Glen
v.
Binnie, &c

Date: 24 November 1626
Case No. No 436.

A lucrative tack let by a bankrupt to his father, bearing to be in implement of a promise made when the lands were disponed to the bankrupt, in his contract of marriage, found not to prove its onerous cause against a creditor.

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In a double poinding raised at the instance of some tenants of burgh-land in who were distressed for their mails, at the instance of Glen on the one part, and by Binnie on the other part; Glen's right was a tack set to him by his own son, who shortly after the date of the tack became bankrupt; and which son, by his contract of marriage, was appointed to be infeft by his said father (who was also party contractor in the said contract of marriage) in the same land, and according thereto was infeft therein. This tack bore, in the narrative thereof, that notwithstanding of the provision made to the son by the father, conform to the foresaid contract, yet, at the date and time of the said contract, it was convened verbally betwixt the father and the son, and the son promised that the father should retain the possession of the said lands, wherein he was appointed to be infeft, during all the days of his lifetime, notwithstanding of the right to be given to the son heritably by virtue of the said contract, for fulfilling of the which promise and condition the said tack was set; and in respect of the which tack, bearing the said promise, and that the father, now defender, alleged, That he had continued in real possession of the duties of the lands libelled continually, by virtue of the said promise, since the date of the said contract many years, to the time of the setting of this tack; and that also he had uplifted a term's mail of the land since the date of the tack, and so the same was clad with possession; therefore he alleged, That he ought, conform to his tack, to be answered of the rest of the terms controverted, viz. all the terms after that term whereof he had received payment, as said is; especially seeing he needed not to prove any further of the promise, than by the narrative of the tack, and that conform to the act of Parliament anent dyvours, that he was content to give his oath upon the true cause, and that the promise was then truly made, so that there was no necessity of any other anterior writ. The other party Binnie alleged, That he ought to be preferred, in respect the tack was set to the father by the son, who was at the setting thereof in meditatione fugæ, and thereafter shortly became bankrupt, and he was his creditor who had registered the son's bond a day before the setting of the tack, and had comprised the lands, and was infeft therein before any terms had passed, except that one alleged uplifted by the father, which one only term could not make the tack lawful against the compriser, there being nothing extant in writ to verify any anterior promise; which promise made so fraudulently the time of the contract of marriage, ought not to be allowed, especially where there is nothing to qualify but the assertion of the son, done so long after the contract and made to his own father, and in prejudice of him a lawful creditor who had done all diligence; for as that tack could not meet the son's wife, who had her conjunct-fee right of that land given to her, if her husband had been dead, no more now ought the same to meet the creditor. This allegeance of the creditor's was admitted, and the father's allegeance repelled and the creditor preferred, and decerned to be answered and obeyed.

Clerk, Gibson. Fol. Dic. v. 2. p. 252. Durie, p. 235.