Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION I.

Behaviour as Heir.
Subject_3 SECT. XII.

Behaviour upon Act 1695.

Thomas Mercer
v.
Robert Leith

Date: 24 November 1714
Case No. No 89.

An apparent heir accepting a disposition to heritable sums from his father, found liable to his father's creditor, conform to the 24th act, Parl. 1695.

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Thomas Mercer pursues Robert Leith, as representing James Leith his father, for payment of the sums contained in two bonds, granted by Dickson of Westbinnie, Mr John Montgomery, and the said James Leith, to which the pursuer has right by progress; and insisted on this passive title, that the defender accepted a disposition from his father to certain heritable sums of money, and thereby became liable conform to the act of Parliament 1695; which the Ordinary having sustained, the defender offered a reclaiming bill, on these reasons; 1mo, The defender's father's disposition was only an inconsiderable heritable sum; 2do, The act of Parliament relates only to purchases made by apparent heirs, that is, heirs to whom the succession is devolved by the death of his predecessor: Although the acquisition had been from a stranger, and to a much more valuable right, made in the father's lifetime, it would not have been in the case of the act of Parliament, which bears. ‘That if any apparent heir without being lawfully served, &c.’ which, and all the cases there related do only concern apparent heirs to whom the succession is devolved. And the act of Parliament 1661, prorogating the legal of apprisings purchased by apparent heirs, was never extended to such purchases made in the lifetime of the predecessor. It is true, in the case the 7th June 1710, Watson against Alexander Brown, No 88. p. 9743. observed by Mr Forbes, it was otherwise found; but that decision is marked very short, and being the interpretation of a correctory law, deserves to be the more maturely considered.

It was answered; The disposition made by the defender's father, is not of a small subject, but of many sums, and indeed the substance of what his father had, and reserving his father's liferent; so that although the acquisition was in his father's time, yet the possession was calculated to begin after his father's decease, when the succession was devolved to him, which falls clearly under the words of the 24th act of Parliament 1695, declaring, that an apparent heir entring to possess his predecessors estate, or purchasing any right thereto otherwise than by a public roup, shall be liable as if he were heir served: and if it were otherwise the act of Parliament would be easily eluded, either by acquiring a disposition from the predecessor and pretending an onerous cause, as in this case, which strangers could not disprove, or by acquiring rights from third parties in the father's lifetime; and the Lords in the interpretation of all laws do consider the design of the law, which they will not suffer to be evaded by the contrivances of apparent heirs; and thus it was found in the case of Watson against Brown upon full debate, and very unanimously, and a reclaiming bill refused; and for the same reason the right of an expired comprising acquired by an apparent heir in his father's lifetime, was found to be redeemable at the instance of his father's creditors upon the act of Paliament 1661, 19th June 1668, Burnet of Carlops against Nasmyth, No 48. p. 5302.

The Lords repelled the defence.

Fol. Dic. v. 2. p. 34. Dalrymple, No 117. p. 164.