Scottish Court of Session Decisions

Subject_1 REDEMPTION.

The Earl of Glencairn
v.
John Brisbani

Date: 5 January 1677
Case No. No 54.

Effect with regard to creditors, of a reversion in favour of the heirs of the reverser's own body allenarly.

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There was a declarator raised at the instance of the Earl of Glencairn, as being a lawful creditor to Francis Freeland, prior to a disposition made by him to Robert Hamilton and John M'Nairn, two other creditors of his, of the lands of Freeland; which two creditors, with consent of the said Francis, the common debtor, and they all with one consent did dispone the same, for 8000 merks, to John Brisbane, under reversion, by a bond granting the same to be redeemable by the apparent heir of the said Francis' own body allenarly, upon payment of the foresaid sum; and therefore craved, that, upon requisition and payment made by the said Earl, the said John Brisbane might be decerned to denude himself of his right of the said lands in the Earl's favours. It was alleged for the defender, That no such declarator might be sustained, because all reversions, by our law, are strictissimi juris, and this bond of provision, being only granted in favours of the apparent heir, who never yet had existed, no creditor of the father's could have the power of redemption, the father being simply and absolutely denuded. It was replied, That albeit reversions were strictijuris, yet that was only interpreted where the case is betwixt the disponer and the receiver; but, in this case, the question being upon a prior creditor of the father's to the dispositson made to him, if upon reversion, and the person who received the disposition and granted the reversion in favours of his apparent heirs only, that reversions cannot militate against the prior creditors; but they ought to have liberty to redeem, as if it had been granted to the father, otherwise they might be totally secluded from their just debt, against which they have a remedy by the act of Parliament 1621, King James Vlth. It was duplied, That, by the act of Parliament cited, and all practiques, remedy is only granted to prior creditors, where fraudulent dispositions are made, but, in this case, it being offered to be instructed, that the lands were purchased for a just debt and adequate price, to the worth of the lands, no prior creditor, unless upon inhibition, can have any remedy in law; otherwise it would obstruct all commerce and security from those who bona fide may make a purchase for a just price; and the reversion being only granted out of favour, not to the disponer, but to the heirs-male of his own body, upon special consideration, un less there had been an heir-male, and a comprising led against him at the instance of the father's creditors, in which case, he would be obliged to fulfil the father's condition of the reversion, Viz. both to pay all expenses of building and melioration of the lands, they could never redeem, because their comprising could give them no more right than the person had from whom they comprised. The Lords did seriously consider this case, and found, in the first place, that the reversion being taken by his father to his apparent heir, albeit he had none, yet they did sustain the declarator at the instance of prior creditors, that the same was comprisable by them for their just debt; but, in the second place, they found, that if the buyer of the land did pay a full and adequate price for the land, which was never affected by any inhibition against the father, that in reason and law it could not be taken away from him so as to deprive him of all the expenses of reparation; and therefore they ordained a conjunct probation, as to the worth of the lands the time of the bargain, and if the price given therefor was a full and adequate price.

Gosford, MS. No. 931. p. 508.

*** Dirleton's report of this case is No 116. p. 1011., voce Bankrupt.