Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.

D. 130. Earl of Kinghorn contra The Laird of Ʋdney. 14 January. 1668.

THE Earl of Kinghorn did Wadset to the deceast Laird of Ʋdney the Barony of Balhaves, and the Sum due upon the Wadset being pay∣ed to Ʋdney, he did by his Letter to the said Earl promise a Renounciati∣on of the said Wadset to be granted by him: The Earl of Kinghorn as Heir to his Father having pursued the now Laird of Ʋdney as represent∣ing his Father upon the passive Titles, and especially upon that, as Suc∣cessor Titulo Lucrativo; in so far as he was Infeft in the Lands condescen∣ded upon acquired by his Father to himself in Liferent, and to the Defen∣der in Fee; with power to the Father or his Assigney to redeem the same upon payment of three Pounds; And to Set, Wadset and dis∣pone without his consent. It was Alledged, the Sons Right was prior to the said Letter, and that the Father did not make use of the said power: It

was Replyed, That the Wadset was prior to the Defenders Right; yet this Right being qualified (as said is) the Father might have contracted Debts, and granted obligements after the said Right; and the Defender would be lyable to the same; seeing the Lands and the Fathers interest in the same being upon the matter a Fee and power to redeem and dispone, might have been comprysed for his Debt contracted after the said Right.

There being two questions in the case viz. Whether the Defender be lyable as Successor Titulo lucrativo, If it should be found that the Wadset was Anterior? 2ly. If the obligement shall be found to be after the Defen∣ders Right, whether he would be notwithstanding Successor Titulo lucrati∣vo, in respect of the quality and condition foresaid of the said Right.

The Lords repelled the alledgance, and Found, the Defender would be lyable as Sucessor, the pursuer proving that the Wadset was Anterior: As to the second question, the Lords thought it not necessar to decide, being of very great consequence, and deserving hearing In praesentia, seing it was notour that the Wadset was before the Defenders Right: Yet we inclined for the most part to think, that when such Rights are granted or Purchased by Parents to their appearand Heirs, they should be lyable to all the Debts due and contracted thereafter; at least secundum vires & in quan∣tum Lucrantur: And beside the abovementioned reasons, these may be urged 1. the Father having by such a reservation, not only a reversion but in effect a Right of propertie, In so far as he has power to Dispone and wadset as if he were Fiar; if he should discharge the said Reservation his Discharge would inferr against his Son the passive title of Successor titulo lucrativo; having gotten thereby an absolute and irredeemable Right which he had not before; And therfore he not useing the power com∣petent to him by the said Reservation, being equivalent as if he had dis∣charged the same, ought to operate the same effect. 2. Such a Right is in effect Praeceptio Haereditatis cum of effectu only the time of the Fathers decease, seeing before that time it is in his power to Evacuat the same; and therefore the time of the Fathers decease is to be considercd so as the Son cannot be said to have Right or to Succeed effectualy before that time, and so ought likewise to be lyable to the Debts contracted at any time before his Fathers decease.