Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. VI.

Deeds in minority when ipso jure null, when requiring a restitutie in integrum.

Robertson
v.
Oswald

1584. January.
Case No. No 99.

A minor having alienated lands without consent of his curators, the Lords found, that, although he had been silent for many years after the quadriennium utile was expired, yet he might pursue via ordinaria, to get the alienation declared null ab initio, and that the circumscribing minors within the quadriennium utile, is only in case they need the remedium extraordinarium of a reduction.

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There was one called Oswald, that had made one Robertson cessioner and assignee to an action of reduction, of certain infeftments and dispositions made by the said Oswald. The reason of the summons was qualified, that the said infeftments and dispositions were made by Oswald, sine consensu tutorum aut curatorum; and his father, who was at that time his lawful administrator, he being in the mean time pupillus et minor annis; and so he pursued not via restitutionis in integrum et juxta ordizaria via; but desired the infeftment to be declared null and of no effect. It was first alleged by the defender, That the pursuer, as cessioner and assignee to a minor, could have no action to pursue, because that all the privileges and benefits which of the law are granted to minors, are all personal, et non egrediuntur persona minoris saltem ejus hæredis et universalis successoris, et nullo pacto potuit minor transferre in singularem successorem. To the which was answered, That the reason of the summons was not founded upon the privilege granted to the minor restitutionis in integrum; nor yet the assignation made to that effect; but the minor had made the said assignation to pursue ‘via ordinaria, et ubi minor communi auxilio et mero jure manitus est, non debet ei tribui extraordinarium auxilium, prout in L. 16. D. De minoribus; ut in presenti casu,’ the foresaid pupil had made alienation without the consent of his father, being lawful administrator to him for the time, or not authorised by his tutors or curators, and the minor in this case used the privilege granted to him of the law, per viam restitutionis in integrum, but he might here, as if he had been major, make assignation of his action of reduction. It was answered, That he could never now be heard, neque ordinaria neque extraordinaria via et modo, because he had not only kept silence and ceased, per spatium utilis quadrennii, but also by the space of 20 or 24 years. It was answered to this, ‘quod tempus quadriennii non currit contra minorem nisi quando utitur privilegio et extraordinario auxilio,’ and so the minor or his assignee could never here be debarred from the pursuit of his action more than he were any other person. The Lords repelled the exception, and found that the minor had place here to make an. assignee, notwithstanding of his taciturnity per longum temporis spatium.

Fol. Dic. v. 1. p 579. Colvil, MS. p. 395.