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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Claim, Kinlochs v The Crown. [1751] 5 Brn 786 (9 January 1751)
URL: http://www.bailii.org/scot/cases/ScotCS/1751/Brn050786-0951.html
Cite as: [1751] 5 Brn 786

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[1751] 5 Brn 786      

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Claim, Kinlochs
v.
The Crown

Date: 9 January 1751

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[Elch. No. 17, Forfeiture.]

Sir James Kinloch, the attainted person, was heir-apparent of an entail made by his father, and completed by infeftment, but not recorded, and he was likewise heir-at-law to his father. His son, the succeeding heir of entail, now claims the estate, upon these two grounds :—1mo, That supposing Sir James could have given away the estate to onerous creditors or purchasers, so far that such creditors or purchasers would have been secure, yet it would have been a fraudulent deed in Sir James, contrary to an obligation which the entail, though not recorded, laid him, the heir, under, and such a deed as he would have been liable to make reparation for out of any other estate he might have, to the succeeding heirs of entail; and in this respect Sir James's case is different from that of an heir-tail in England, who can alienate the estate by the device of fine and recovery, and is under no such obligation to the succeeding heirs. Now, this being the case, the Crown is not in use of taking advantage of such fraudulent deeds of forfeiting persons, but makes good all claims against the forfeiting person, though they be such as might have been disappointed by his fraudulent deed, as in the case of Garntully, in the 1715, where a minute of sale was sustained as a good claim against the Crown, though undoubtedly it might have been defeated by the forfeiting person selling again, and that second purchaser being first infeft. 2do, The claimant here was secure even against onerous creditors ; because Sir James's right, being merely a personal right, must be taken with all its qualities and conditions, as was decided in the case of Denham by the House of Peers.

To the first, it was answered, That the claimant had no better claim here than every heir of a marriage, whose father may sell and burden the estate provided to the issue of the marriage, but the heir will have an action against him to make the provisions good out of any other estate, and yet such heir will have no claim against the forfeiture, as was decided in the case of John Hay's Son, upon this principle, that the Crown by the forfeiture is in the case of an onerous creditor or purchaser; and the instance of Garntully does not prove that the Crown is not considered as an onerous purchaser, but only that it is not considered as a purchaser infeft, in prejudice of a prior purchaser. 2do, As to the argument drawn from the case of Denham, it will not apply, because in that case the heir had no other title but his personal right upon the entail, whereas the heir here is likewise heir-at-law, and the entail not being recorded, a creditor was not obliged to mind it, but might have charged Sir James to enter heir, and so have adjudged ; which the Lords sustained,—dissent. Dun.

The right, therefore, of the Crown by forfeiture, is of this kind,—the King by the rebellion and attainder is an onerous creditor, quia delinquendo contrahitur,—therefore he is preferable to an heir of a marriage,—a protestant heir,— an heir of entail declaring an irritancy after attainder,—an heir of an entail not recorded, as in this case ;—but he is not considered a real creditor,—therefore he is not preferable to personal creditors; nay, by the benignity of the Crown, all personal creditors that are onerous are preferred to him.

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


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