Scottish Court of Session Decisions

Subject_1 MINOR.
Subject_2 SECT. VI.

Deeds in minority when ipso jure null, when requiring a restitutio in integrum.

Bannatyne
v.
Trotter

Date: 19 January 1704
Case No. No 105.

A minor granted an assignation of a sum to his father, and when major, he assigned it to another person, but neglected to revoke the first assignation, judging it null, as in it his father was auctor in rem suam. The Lords found the first assignation not simply null, but only revocable and reduceable, and, as it had not been revoked within the quadriennium utile, they preferred the father.

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Captain John Bannatyne having married Dr Robert Trotter's sister, and there being 500 merks of the tocher yet resting unpaid, the Doctor gives a bond to the said John for that sum in liferent, and to William Bannatyne (who was the son of the marriage) in fee. William grants an assignation of this sum to his father, but he was then minor. Afterwards, on some mistakes arising betwixt his father and him, he retires to the Doctor his uncle's house; and being then major, and resolving to go abroad, he makes a second assignation to Margaret Trotter his cousin, the Doctor's daughter, and delivers it to the Doctor, as tutor and administrator of the law to her. John Bannatyne, the father, having transferred the debt to one Rae, he charges the Doctor for payment; who suspends, on this reason, that the first assignation was null, being granted by a minor wanting curators, in favour of his father, who was legal curator, and who could not authorise his son in rem suam, as was decided, Fairholm against Sir George M'Kenzie, No 72. p. 8959; and here William Bannatyne, after he became major, had made a second assignation, which was a tacit revocation of the first given by him in minority, and likewise was preferable (though posterior) as first intimated to the debtor, in so far as it was delivered to the Doctor for the use of Margaret his daughter, which delivery was equivalent to an intimation. Answered, Though the bond was taken to the son in fee, yet the money was originally the father's; and his son being in familia unforis-familiate, it must be reputed the father's; and so his necessities requiring it, res devenit in alium casum, especially where the bond bears an express clause, that the son should not uplift it without the father's consent, ergo neither could he asssign it; likeas, the second assignation bears a quality and condition, that it shall be void and null if he return to Scotland; and the second right elicited from him, can never be reputed a tacit revocation of the first; for though this may hold in donations between man and wife, yet it is not so with double rights made first in minority, and then after it; for in that case express revocation is requisite, and a reduction intra annos utiles; neither of which is used here; and the case of Fairholm is toto cælo different; for there a father had caused his son, while minor, to bind cautioner for him; and it being objected he was not authorised, and it being replied, his father signed with him, the Lords justly found he could not be author in rem propriam. Replied, The assignation taken by the father from his own son was ipso jure null, (not being conceived in a third person's name), and so needed neither revocation nor reduction intra annos utiles; and the father's taking assignation, was to defraud the son of all the means of livelihood, he having no other thing to lippen to; and the second assignation was an effectual revocation of the first; and when he returns, he shall be reponed to his own right. The Lords found the first assignation was not simply null, but only revocable and reducible; and seeing no reduction was raised within his quadriennium utile of 25 years, they preferred the first assignation made to the father before that made to Margaret Trotter.

Fol. Dic. v. 1. p. 579. Fountainhall, v. 2. p. 212.