Scottish Court of Session Decisions

Subject_1 COMPETITION.
Subject_2 SECT. VIII.

General Assignees with Creditors.

Gordon
v.
Frazer

Date: 3 July 1663
Case No. No 41.

A disposition by a husband to his wife, of his moveables upon a particular estate, was found sufficient to defend the relict in her possession of those moveables, against an executor-creditor pursuing for them.

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Gordon having confirmed himself executor-creditor to Forbes of Auchinvil, pursues——Frazer, his relict, for delivery to him of the moveables, who alleged absolvitor, because the moveables upon the Mains of Auchinvil were disponed to her by her umquhile husband.—It was answered, That the disposition was simulate, inter conjunctas personas retenta possessione, and therefore null.—It was duplied, That the disposition was upon an onerous cause without simulation, because it bears to be in respect that, by the defunct's contract of marriage, he is obliged to infeft his wife in five chalders of victual out of Auchinvil, for the aliment and entertainment of his younger children, till the age of 14 years; and because he was necessitate to sell that land, therefore he disponed the moveables in lieu thereof, which is also instructed by the contract of marriage.—The pursuer answered, That this is but a provision to children, and could not be preferred to the defunct's creditors, especially being a provision before the children were existent; and if such were to be allowed, it were easy, upon such latent provisions in favours of children, to prejudge creditors.—The defender answered, That if the pursuer's debt had been anterior to the contract of marriage, he might have had ground upon the act of Parliament 1621; but this debt was posterior to the contract, and there was no reason to hinder a parent to provide his children, and dispone moveables to him in satisfaction thereof.—The pursuer answered, That both being yet but personal obligements, not having obtained effectual possession, the creditor, though posterior, must be preferred to the children, especially if the defunct have not sufficient estate to pay both; 2dly, The disposition is upon a false narrative, because the lands of Auchinvil are yet undisponed.

The Lords found, That the childrens' disposition ought to be preferred, unless the father were insolvendo, at his death; in which case they preferred the creditors, though posterior; and likewise found the allegeance relevant, that the narrative was false, and so the disposition without a cause. See Povisions to Heirs and Children.

Fol. Dic. v. 1. p. 180. Stair, v. 1. p. 195.