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On 5th August 1826, the defender, in fulfilment of this transaction, executed in the pursuer's favour a disposition and conveyance of ‘all and whole my liferent right, use and possession of all and whole the following parts and portions of the entailed lands and estate of Finlaystone,’ being those possessed by the pursuer, and containing a precept of sasine, on which he was infeft. Under this title he possessed the house and lands, and made considerable additions to the former, and improvements in the latter.
The defender was accountable to the pursuer for his intromissions with the rents of the estate of Ardoch, as the pursuer's administrator-in-law during his minority; and it was agreed that the stipulated price for the liferent of Finlaystone should be imputed pro tanto in extinction of the much larger debt due by the defender on this account.
In 1831, a process of ranking and sale was brought of the defender's estates of Gartmore and Finlaystone. The summons included the parts of the latter estate possessed by the pursuer; but they were afterwards, on his intimating opposition, in the interlocutor of the Court appointing a sale, excepted therefrom in hoc statu.
Of course these views are submitted merely on the law as it stands . It is a different question how far the law in its present state is not imperfect or defective, and does not give an undue advantage to purchasers or disponees. If so, it must be altered by enactments to a different effect from any to be found in the statutes now subsisting.
The transaction between the pursuer and his father, now libelled on, is represented by the defender as one of an unfavourable character, in so far as it was a preference given by a father to his son to the prejudice of his other creditors; but it appears from other processes before the Lord Ordinary, that the most probable ground on which it might have been thought, a priori, that this agreement could be challenged, (on the act 1696,) has been long ago repelled, both in this Court and in the House of Lords.’
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Common Room
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