Conventional Irritancy in Bargains, Contracts, and Entails, if purgeable. - Irritancy relative to legatum liberationis, when purgeable.
Nisbet v. Creditors of Dryburgh
1686.
November. Case No. No 83.
A lady restricted her jointure in favour of her son, upon condition that if the restricted sum should not be duly paid, the restriction should be ipso facto null. He having failed in payment, the Lords found the irritancy purgeable by his creditors, but declared, that if they should fail in payment, they should not be indulged to purge a second time.
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By contract of marriage betwixt Patrick Yeaman of Dryburgh, and Margaret Nisbet, she being provided to the liferent of 16 chalders of victual; and after her husband's decease, she having entered into a contract with Patrick Yeaman, her son, whereby for the preserving of his estate and standing of his family, she did restrict her jointure to 1000 merks yearly, in favour of the said Patrick and Henry Yeaman, her sons, and the heirs of their body; but not in favour of the heirs female, who are thereby excluded; and bear a clause irritant, That in case the 1000 merks were not paid yearly at the terms therein mentioned, so that two terms run in the third unpaid, in that case the restriction was to be null, and the said Margaret was to return to her former jointure; and the said Patrick, the oldest son, having deceased without children, and the said Henry, his brother, having lain out, and not entered, so that two terms did run in the third unpaid, the said Margaret did raise a declarator against Henry, her son, and his creditors, for declaring the restriction null, and that she might enter to her former jointure. Alleged for the Creditors, That there being jus quæsitum to them by the foresaid restriction, as coming in place of Patrick Yeaman, their debtor, they ought to be allowed to purge the irritancy, upon payment to the pursuer of her bygone annuity, as the said Patrick might have done, especially seeing they did not know that the irritancy was incurred. Answered, That the foresaid restriction was only personal, in favour of her two sons, for the preservation of the estate, excluding her daughter; and the eldest son being deceased, without children, and the second son not entering to the estate, and craving the benefit of the restriction, and seeing the estate was not to be preserved in the son's persons, that restriction, which was but personal, and granted upon a particular consideration, was now ceased; the benefit thereof was not competent to the creditors, nor could they be allowed to purge the irritancy; but the pursuer ought to be restored to her full jointure, conform to the provision in the contract betwixt her and her sons.——The Lords found the irritancy purgeable by the creditors making payment to the pursuer of all bygones betwixt and the next term; but declared, That in case the irritancy were thereafter incurred, the Lords would not allow them to purge the irritancy at the bar, providing always that the pursuer make intimation to the creditors by way of instrument, of her not being timeously satisfied.
Fol. Dic. v. 1. p. 489. Sir P. Home, MS. v. 2. No 818.
