In the reduction at the instance, of the Earl of Glencairn against John Birsbane, of his right of the lands of Freeland, and declarator, that a reversion in favours of the heir of the disponer’s own body, to take effect after the disponer’s death, was fraudulent, purchased by the disponer’s means, and therefore should be holden to be as taken to the disponer himself, and that it might be affected by the pursuer as his creditor:-The defender alleged, that this disposition was for an adequate price, and therefore there was no prejudice to the disponer’s creditors; and as to the reversion, it was a personal favour to the disponer’s heirs-male of his own body only, and did not make the right as a wadset, but it remained a true sale; neither doth any gratuitous right, procured to a son, become affected by the father’s creditors, unless the father had exhausted his estate, which the creditors might have affected by purchasing thereof:-Which defence the Lords found relevant.-It was now further alleged, That the price was not adequate, because the pursuer offered to give 2000 merks more, and to find out a tenant that would take a nineteen years tack for 500 merks yearly, the land never having been set, but still in mainsing, which, at twenty years purchase, will be 10,000 merks, whereas the price is but 8000 merks; and where debtors have not an estate sufficient for their debt, the greatest price that can be obtained should be sustained, though it be above the ordinary price.-It was answered, That the price of affection or emulation is no just ground to reduce a disposition, otherwise no man would buy from persons that are in great debt; but a competent price hath ever been sustained, and the procuring of a tenant to take above the true value, whose hazard may be secured is not sufficient.
The Lords adhered to their former interlocutor; but seeing the land was not set but in mainsing, they would prefer neither party in the probation of the rental, or price, but allowed either party to adduce witnesses what the land was worth, and might pay as at a constant rent, and what it was worth in buying and selling in that place of the country.
Citations:
[1677] Mor 1011
Links:
Jurisdiction:
Scotland
Cited by:
Cited – MacDonald and Another v Carnbroe Estates Ltd SC 4-Dec-2019
‘This appeal concerns the Scots law of gratuitous alienations on insolvency. It raises three principal questions. First, there is a question as to the interpretation of the term ‘adequate consideration’ in section 242(4)(b) of the Insolvency Act . .
Lists of cited by and citing cases may be incomplete.
Insolvency
Updated: 29 May 2022; Ref: scu.677074