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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ferguson v Lindsay. [1678] Mor 9803 (23 July 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor2309803-131.html
Cite as: [1678] Mor 9803

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[1678] Mor 9803      

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION II.

Lucrative Successor post contractum debitum.
Subject_3 SECT. III.

The Debt must be anterior to the Disposition. - What understood to be an Anterior Debt.

Ferguson
v.
Lindsay

Date: 23 July 1678
Case No. No 131.

Succession lucrative was found not to be inferred by an infeftment posterior to the pursuer's debt, it being on a contract of marriage anterior to the debt.


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Thomas Ferguson pursues William Lindsay, as representing his father, for payment of his father's bond of 1600 merks, and insists against him as successor lucrative post contractum debitum, by an infeftment in lands upon his father's disposition; which infeftment is posterior to this debt, and therefore he is successor after this debt, and ex causa lucrativa. The defender answered, non relevat, unless the debt had been anterior to the disposition; for that passive title is always, understood of a successor ex causa lucrativa, quæ causa est post contractum debitum; for the infeftment is but in implement of the disposition et necessitatis, though the disposition be voluntatis. The pursuer replied, That his debt is both anterior to the infeftment, and the disposition upon which it proceeds. The defender duplied, That the disposition is not the cause of the infeftment, but a contract of marriage, disponing the same lands; and though this disposition doth not relate to the contract, yet it is presumed to be in implement thereof, and the father might have been compelled upon the contract to extend the disposition, with procuratories and precepts to complete the infeftments.

The Lords found the defence relevant, that the same lands were disponed by contract of marriage, before contracting the pursuer's debt, though this disposition and infeftment thereon was posterior to the debt.

Fol. Dic. v. 2. p. 37. Stair, v. 2. p. 639.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor2309803-131.html