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Scottish Court of Session Decisions >>
Stark v Kincaid. [1679] Mor 17002 (11 December 1679)
URL: http://www.bailii.org/scot/cases/ScotCS/1679/Mor3817002-261.html Cite as:
[1679] Mor 17002
A disposition of land sustained, though found among the disponer's writs at his death, without a clause dispensing with not delivery, as it bore a clause reserving the disponer's liferent, and power to alter.
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Robert Stark having adjudged two acres of land belonging to umquhile Robert Nasmith, pursues a reduction of a disposition granted of the same acres by Nasmith to Thomas Kincaid on this reason, that the said disposition is already proved to be amongst Nasmith's writs the time of his death, and therefore was never a delivered evident, and so null. The defender alleged absolvitor, because the disposition bears “a reservation of the disponer's life-rent, with power to alter during the disponer's life,” and therefore without delivery, or a clause dispensing with the not-delivery, the writ is effectual, and equivalent, as if a dispensatory clause were inserted, especially seeing the defunct had no children. There was a practique produced for the like in anno 1668, Hadden against Shorswood, No. 256. p. 16997.
Stair, v. 2. p. 720.*** Fountainhall reports this case:
Reduction of a disposition because undelivered. Answered, It bears a power to alter and renovate, which is in law equivalent to a clause dispensing with the not-delivery, as was found 19th June, 1628, Agnes Hadden and Mary Lauder against Shorswood, No. 256. p. 16997. The Lords found this reservation of a liferent, and to alter, had the force of a delivery; but likewise that it included a power to contract debts, and therefore found it was burdened with the debts contracted by him after the date of it; which last interlocutor was on the 23d December, 1679.
