Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. V.

Clauses burdening Conveyances.

Geddes
v.
Younger

Date: 18 February 1729
Case No. No 64.

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In a disposition by a father to a son, the question arose, if the father's debts were a burden upon the right, so as to be good against singular successors, or only a personal burden upon the disponee and his heirs? In the dispositive part, the clause was worded thus, “likeas, by acceptation hereof, the said George binds and obliges him, and his foresaids, to make payment to my lawful creditors of all my just debts;” and in the procuratory of resignation, “and the said George shall to obliged to pay to my creditors, my just and lawful debt, &c.” But in the clause of warrandice, it stood thus, “which right, I bind and oblige me to warrant from my own proper fact and deed, with the burden of my debts;” and in the precept of sasine, “under the reservation of my own liferent, and with the burden of my just and lawful debts.” The father's debts were here found a real burden upon the subject disponed, and good against singular successors, though it was argued to be most express in the dispositive clause and procuratory, that this was a personal burden only upon the accepter, and that the subsequent clauses must be understood of the burden, as described at large in the foregoing principal clauses of the writ; a personal burden being as truly a burden in its nature as a real burden. See Appendix.

Fol. Dic. v. 2. p. 67.