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Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. II.
Alienations ominum bonorum.
Kinloch v. Blair
Date: 18 January 1678 Case No. No 14.
An uncle took a disposition from his nephew of his whole estate, in satisfaction of anterior debts. By this the nephew became utterly insolvent. The transaction was reduced as fraudulent, to the effect of bringing in the other creditors for their proportion.
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Kinloch of Gourdie pursues reduction of all rights granted to Mr George Blair by James Strachan of Kirktoun of Lethindie, on this reason, that Mr George being uncle to the common debtor's heir, a minor, had acted for him, and retarded the pursuer's diligence, and after the pursuer had obtained decreet cognitionis causa, Mr George bought in rights from other creditors, and took a disposition from the common debtor of this land, which was his whole estate, and being superior to him, granted to him a precept of clare constat, and accepted from him a resignation ad remanentiam, though he knew that he had no other estate; and albeit it was notour to him that he was bankrupt, his debt far exceeding his estate. The defender answered, That the reason is not relevant, seeing he, as assignee, was creditor, and was prior in diligence, and therefore might lawfully take satisfaction from his debtor by a disposition for causes onerous, against which there was no ground from the act of Parliament 1621, which excludes no preference, but that which is in prejudice of creditors, having done diligence lawfully, affecting the debtor's estate, as by horning, inhibition, arrestment, or apprising; and though it has been found, that, after denunciation of lands to be apprised, or execution of an inhibition against the party inhibit personally, that dispositions in favours of other creditors, by the common debtor, granted before the apprising or publication at the cross where the lands lie, might reduce the interveening dispositions as fraudulent by gratification; yet it was never found that the beginning of a pursuit, or obtaining a personal decreet, could impede another creditor to take a disposition for his satisfaction, seeing the pursuer had an ordinary and obvious remeed by an inhibition. 2do, Diligence operates nothing, when it is not punctually insisted in: but here four months interveened betwixt the decreet cognitionis causa, and the adjudication.
The Lords found not that member relevant upon anticipation, the diligence being but personal; but found the other members relevant, as grounds of fraud, though not founded upon the act of Parliament; especially, the taking a disposition of the whole estate, from a person notourly insolvent, not being by an inconcerned person, by way of commerce, buying the land, but by a creditor obtaining preference; but declared the reduction to be only to this effect, that both parties might come in proportionally effeiring to their sums, as if both had obtained decreets within year and day.
