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Gray of Creighy v Gordon of Avachy. [1696] 4 Brn 311 (19 February 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040311-0672.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Gray of Creighy v. Gordon of Avachy
Date: 19 February 1696
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Gray of Creighy against Gordon of Avachy, for payment of a debt contained in his grandfather's bond. The passive titles were offered to be connected thus:—You represent your father, and he had a disposition to a part of the estate posterior to the contracting my debt. Alleged,—A disposition was penal, and like vitious intromission; which was never sustained to infer a universal passive title, unless established in the party's own lifetime; because he might have grounds to elide it, and ascribe his intromission, which might be unknown to others; and even behaviour as heir (which is an heritable passive title,) must be proven against the party while in life; and it were hard that a disposition to a few acres should, prœceptione hœreditatis, subject a man to the whole debt. Answered,—There is a great difference betwixt vitious intromission, which is only probable by witnesses, and accepting a disposition post contractum debitum, which is instructed scripto.
The Lords thought the point new, and ordained it to be heard in presence.
