Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

Katharine Maxwell and her Husband
v.
Gordon of Carleton

Date: 12 July 1716

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The deceased Major Maxwell of Glenlair, being debtor in considerable sums of money to Carleton, he, for payment thereof, and some other debts, dispones to him the lands of Glenlair, with special provision that the disposition should be burdened, and the lands stand affected with an heritable bond of 1000 merks of annual-rent, &c. of provision granted by the Major to Katharine Maxwell, his daughter, the disposition containing absolute warrandice. After which, nevertheless, an old adjudication appeared, led at the instance of one Mr. John Fraser, which Carleton thought fit to transact; the ground of which adjudication was a bond, wherein the Laird of Kilwhannadie was principal, and the Major cautioner, and on which Fraser was infeft in Kilwhannadie's lands. There being also a debt owing by the Laird of Earlston to the Major, he assigns the same to his said daughter, (at the same time he granted the above disposition,) for the further security anent payment of her said bond of provision.

Carleton being convened by Katharine Maxwell upon the clause of the disposition aforesaid, it was answered for him, 1mo, That, in so far as she had recovered payment of Earlston's debt, he could not be liable; her assignation thereto having been expressly granted for further security of her bond of provision: 2do, Esto she had got no payment of that debt; yet, by the said adjudication at Fraser's instance, now in the defender's person, he was preferable to the bond of provision, notwithstanding his accepting the above disposition, clogged as said is ; and that because of the warrandice which was now incurred by the superveniency of the said incumbrance, and to which she was liable by accepting of the said assignation to Earlston's debt.

Replied for the pursuer,—1mo, That it was jus tertii to Carleton what effects of the Major's she had intromitted with, or what assignations she had accepted from him, since, by the terms of the disposition, the bond of provision was made a burden upon the estate disponed, and nothing could hinder the Major to dispose upon his other effects as he thought fit; and, upon the matter, Carleton, by accepting the disposition, had made the bond his own debt. 2do, That she was not concerned with supervenient incumbrances on the estate, she not representing her father: and Carleton having accepted of the disposition with the burden foresaid, can never, upon any ground, quarrel it; for, by the whole tract of the affair, it was evidently designed, that the children's portions should be secure, and Carleton was to follow the Major's faith in the warrandice.

The Lords sustained the above two defences, viz. that the pursuer had a corroborative security from Major Maxwell, her father, to a debt due by Earlston to him, of which she got payment; as also, that there was a preferable debt due to Mr. John Fraser affecting the lands disponed to the defender by the said Major Maxwell, to which he acquired right: relevant to assoilyie from the pursuers' process, in so far as she received from Earlston.

Act. Ferguson. Alt. Boswall. Sir James Justice, Clerk.

Vol. II. No. 16. Page 19.