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Scottish Court of Session Decisions >>
Nasmith v Nasmith. [1680] Mor 5316 (3 December 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor1305316-058.html Cite as:
[1680] Mor 5316
The power of redeeming apprisings bought in by apparent heirs, is competent only to creditors, not to the debtor himself.
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Sir Michael Nasmith pursues declarator against James Nasmith his son for redemption of his lands of Posso, apprised by Dr Burnet, on this ground, that the right of the apprising coming in the person of James his apparent heir, it is redeemable by the space of 10 years after the apparent heir's right thereto, for the sums he truly paid out, which his father is willing to pay him.—It was answered, That this power of redemption being introduced by the act of Parliament 1661, betwixt debtor and creditor, it is only in favour of creditors, that they may redeem, and cannot extend to the debtor against whom the apprising was led.—It was replied, 1mo, That the Lords may, and do extend such equitable clauses ad pares casus. 2do, The creditors of the debtor may redeem, though they become creditors during that 10 years; so that as the pursuer might contract debt, it is no more prejudice to the apparent heir that he redeem it, than that these creditors do.—It was duplied, That the act can only be understood for creditors before the first legal expire; and if to the creditors during the second legal, it could only be to such who truly lent money, but could not extend to gratuitous deeds.—It was triplied, That the statute is in favours of the debtor's creditors indefinitly, and is not restricted to creditors before the expiring of the first legal; neither can the provisions of wives and children of a second marriage be excluded where there is debitum naturæ, and this declarator is at the childrens instance for their provisions.
The Lords found, That the power of redemption on this clause could not be extended unto the debtor, but to the creditors, but would not exclude the childrens portions, though during the second legal; yet would not sustain process for them till their bonds of provision were produced. See No 60. p. 5319.
