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Scottish Court of Session Decisions >>
Fowlis v Forbesses. [1672] Mor 9711 (30 July 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Mor2309711-059.html Cite as:
[1672] Mor 9711
Acts of the Heir proceeding from his Connection with the Predecessor.
Fowlis v. Forbesses
Date: 30 July 1672 Case No. No 59.
An apparent heir disponed his father's lands, taking the disponee bound to relieve him of debts, for which the disponee granted him bond for a certain sum This was found a behaviour, though nothing followed thereupon; neither the apparent heir having been infeft, nor the bond paid.
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Robert Fowlis Bailie of Edinburgh, having obtained decreet against the three daughters and heirs-portioners of Mr William Forbes, advocate; one of them being married to Mr John Strachan, suspends, and alleges that she does not represent her father; and, albeit there be produced a right granted by her to Tolquhoun of her proportion of her father's lands, and of all right she can succeed to, and that he is obliged to relieve her of all debts she can be liable to, and hath given her bond for 3000 merks, yet there hath nothing followed thereupon; for neither is she infeft as heir-portioner, nor Tolquhoun infeft, nor hath he paid her any money, but suspended; 2do, Albeit she were actually heir-portioner she can only be liable for the third part of the debt. It was answered, That she having disponed her father's heritage, and gotten bond for a sum of money therefor, she has unquestionably behaved herself as heir, and hath apprised Tolquhoun's land upon the 3000 merks; and therefore should be liable, not only for her proportion, but in so far as the benefit of her succession reacheth to, and she may pursue the rest for her relief, rather than put the pursuer, who is a stranger and a creditor, to divide his action or execution against many heirs-portioners.
The Lords found the suspender liable upon the rights betwixt her and Tolquhoun for her third part of this debt, as one of the three heirs-portioners; and declared, that if the pursuer using diligence, should not recover payment through their insolvency, the Lords would take it into consideration how far the suspender should be liable more than for her third part.
