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Deeds in minority when ipso jure null, when requiring a restitutio in integrum.
Thomson v. Stevenson
Date: 13 December 1666 Case No. No 104.
Although the lands of a pupil may not be alienated without authority of a judge, those of a minor may.
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Janet Thomson pursues a reduction of a disposition made by her to Stevenson upon minority and lesion; and also upon this reason, that the disposition was done within some few days after her pupillarity, and it being of land, ought not to have been done without authority of a Judge, especially seeing she had no curators. The defender answered to the first, There was no lesion, because the disposition bears a sum equivalent to the value of the land. To the second, Non relevat. The pursuer answered, That the subscribing and acknowledging the receipt of money by a minor, cannot prove itself, but the minor is lesed in subscribing the same. The defender duplied, That he offered to prove by witnesses, that the price was truly paid, and profitably employed.
The Lords found not the second reason of reduction relevant, the authority of a Judge being only required to the alienation of lands made by tutors of their pupils' lands. See Witness.
Fol. Dic. v. 1. p. 579. Stair, v. 1. p. 411.*** Dirleton reports this case:
In a reduction of a right and disposition of certain houses, being pursued ex capite minoris ætatis; it was alleged, That the disposition did bear 500 merks to be paid, and the defender was content to quit the right being paid of the sum.
It was found, that the allegeance was not relevant, unless he should offer to prove it really paid, and profitably employed for the use of the minor.
In this process the Lords would not sustain the reason per se, unless lesion were joined and libelled, viz. that the lands were disponed sine decreto judicis.
1667. June 4.—In the case Thomson contra Stevenson, the Lords found, that the extract out of the kirk-session books, is not a sufficient probation of age to infer reduction ex capite minoritatis; but the case being difficilis probationis after a considerable time; they found, that aliqualis probatio ought to be received, with the adminicle foresaid. See Proof.
Norvel.Alt. Wallace.Clerk, Hamilton.
Dirleton, No 61. p. 26. & No 72. p. 30.
*** A similar decision was pronounced, 6th December 1699, Creditors of Clark against Gordon, No 69. p. 3668, voce Escheat.
