Scottish Court of Session Decisions

Subject_1 PERSONAL and TRANSMISSIBLE.
Subject_2 SECT. I.

What Rights go to Heirs.

Earl of Murray
v.
Laird of Grant

Date: 9 January 1662
Case No. No 7.

Heirs found to have the benefit of an obligation to re-dispone lands, altho' heirs were not expressed, but appeared to have been omitted by negligence.

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The Earl of Murray pursues the Laird of Grant, to re-dispone him certain lands, which the Earl's father had disponed to the defender; and had taken his back-bond, that if the Earl's friends should find it prejudicial to the Earl, then upon payment of 2800 merks, precisely at Whitsunday, he should re-dispone; ita est, the Earl's friends, by a testificate produced, found the bargain to his loss; therefore he offered the sum to the defender, in his own house, which he refused; and now offers to re-produce it, cum omni causa. The defender alleged, Absolvitor; first, Because the back-bond is pactum de retro vendendo, and so a reversion, which is strictissimi juris, and not to be extended beyond the express terms thereof; which are, that if James Earl of Murray should repay the sum at Whitsunday 1653 precisely, the defender should re-dispone; but there is no mention of the Earl's heirs, and so cannot extend to this Earl, though he were heir, as he was not served heir the time of the offer. The pursuer answered, That when reversions are meant to be personal, and not to be extended to heirs, they do bear, ‘That if the reverser in his own time, ‘ or at any time during his life,’ &c. or some such expression; but there is nothing such here; and the pursuer was retoured heir to his father, who died shortly before the term of redemption; and having used all diligence, he cannot be excluded by such an accident, which he could not help.

The Lords repelled both the defences, albeit there was only an offer, without consignation; seeing the back-bond did not bear premonition, or consignation, but only payment, which the pursuer now offered.

Fol. Dic. v. 2. p. 72. Stair, v. 1. p. 77. *** Gilmour reports, this case:

1662. January 7.—The deceast Earl of Murray feus a piece of land to the Laird of Grant anno 1653, and Grant gives a back-bond, that if the Earl should by advice think fit rather to have back the feu, than that Grant should bruik it, he is obliged to denude himself, the Earl always paying the money at Whitsunday thereafter. The Earl dies before Whitsunday; and this Earl, his son, within five or six days before his service as heir, offers the money to Grant, by way of instrument, and pursues him to denude himself. It was alleged, That the bond was only personal, in favours of the late Earl, and not of his heirs, and is strtcti juris; and that this Earl was not heir the time of the offer, nor did he consign the money. It was answered, That the right to the bond is transmissible to the heir, seeing he says not, that if the Earl being on life, should pay, &c.; and so he is obliged to denude himself, in favours of the Earl's heirs or assignees: That this Earl, the time of the offer, was apparent heir, and within fifteen days thereafter retoured: And the offer was sufficient, seeing the bond provided not the consignation of the money, being as sure in the Earl's hands as any others.

The Lords repelled the allegeance.

Gilmour, No 13. p. 12.