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Scottish Court of Session Decisions >>
James Murray, late of Skirling, v James Douglass, now of Skirling. [1694] 4 Brn 163 (23 February 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040163-0378.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Murray, late of Skirling, v. James Douglass, now of Skirling
Date: 23 February 1694
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February 23.—The £17,000 bond, as the remainder of the price of the lands, granted by the deceased Lieutenant-general Douglass, to the said James Murray, bore this express quality and condition in a marginal note:—That he should not only have right to retain the principal sum, but also the annualrents after May 1689, aye and until the special incumbrances condescended on, and contained in the said bond, were purged; and all others, in general, that could any way affect these lands: and ita est these incumbrances were never yet purged, neither by payment, nor by a legal sentence of absolvitor, though there was an improbation depending against them.
Answered for James Murray,—It was not his fault; seeing, by the General's death, the process sisted, and his son is not yet served heir, and so wants a title to pursue; and there was no distress nor eviction, but they were in peaceable possession.
The Lords would not go over the clear and express paction of parties; though some contended it was but of the nature of an irritancy, and purgeable; but recommended to try if the sums contained in the apprising and inhibition, expressly mentioned in the bond, and ordered to be purged, with their annualrents, were within the principal sum of £17,000, for which the said bond was granted; so that the said principal sum would be a sufficient fund to pay them, in case they subsisted and were all due; then the annualrents might be decerned to be paid. Yet this was more favour than law; for there might be other incumbrances, not named in the bond, which might do more than exhaust these annualrents; which could not be summarily discussed in this process, the creditors not being called.
Vol. I. Page 616.
February 27—The Lords, having considered the case between Murray and Douglass of Skirling, mentioned 23d current, and, finding strong presumptions that Mr Lewis Stewart's apprising of Skirling was satisfied by Kincarden, the principal debtor; and that being the chief incumbrance that lay unpurged upon the estate, and there being near five years' annualrent lying in the Lieutenant-general's hand, they modified two years of it, to be paid to James Murray, medio tempore, during the dependence; and declared it alimentary, and not subject to arrestments; and granted diligence to James Murray, for recovering, out of Kincarden's charter-chest, the said apprising and disposition, or other conveyance thereof, to be produced betwixt and the first of June, that then they may consider whether or not he should get up the rest of the annualrents.
