(1812) 5 Paton 573
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND, FROM 1753 TO 1813.
(Mor. App. “Deathbed,” No. 5.)
House of Lords,
Subject_Deathbed — Reduction ex capite Lecti. —
A feu-disposition was sought to be reduced on the head of deathbed, to which it was answered, that the heir at law was excluded by a previous deed executed in liege poustie—namely, a minute of sale which sold to him these lands, and that the subsequent deed was only in implement of that transaction. Held, that as the subsequent deed was in its nature a new transaction, the previous sale must have been departed from and abandoned by both parties, and held by them as an incomplete transaction; and, therefore, the law of deathbed applied.
This was an action of reduction brought by the respondent,
This feu-disposition, which stipulated a price of £2000, with an annual feu-duty of £10 per annum, had been preceded by a minute of sale, signed by the parties some six months before Mr. Logan's death, stipulating the sum of £2000 as the sole purchase price; and action was brought by the appellant to compel Mr. Campbell to implement that minute of sale. These two actions were conjoined; and, afterwards, in consequence of a suggestion by the Court, a second reduction was brought also by the respondent of the minute of sale. The minute, while it sold the lands in question, contained a clause entitling the seller to borrow £1500 on the lands on bond, and the other £500 was to be paid to his heirs, and executors or assignees, at the first term of Martinmas after his death. The ground of reduction was, that the minute of sale was in law to be presumed to have been abandoned by the parties for the feu-disposition subsequently executed; and having been so abandoned for a new deed, totally different in its nature, it could no longer be founded on. In short, that the minute of sale was an incomplete and unconcluded transaction, which, before it had been carried into legal effect, was broken off and departed from. A condescendence was ordered of the facts. From these, it appeared that the deceased Mr. Logan had been very improvident in the management of his estate. Endowed with a vein of wit and humour, and his society universally courted, these qualities engendered expensive and improvident habits. The consequence was, that he had got into debt, and the appellant, it appeared, in many instances, had assisted him to get out of his difficulties, had helped him in pecuniary transactions, and had, finally, been of great service in the management of his affairs. Mr. Logan at one time had resolved to sell part of his property, namely, that part now in question, but had declined
_________________ Footnote _________________ * “The Laird of Logan, or Wit of the West,” is supposed to celebrate this personage.
_________________ Footnote _________________
* “The Laird of Logan, or Wit of the West,” is supposed to celebrate this personage.
Upon considering the pleadings, and hearing counsel, the Court seemed all agreed that the respondent's plea, founded on the state of the titles, was ill grounded, in respect that the old destination was cut off by prescription, Mr. Logan having possessed the estate upon titles altogether independent
Nov. 15, 1805.
The Court, by a majority, pronounced this interlocutor:—
“The Lords having considered the mutual memorials for the parties, with the proof adduced, and writings produced, and advised the whole, allow the supplementary summons of reduction of the minute of sale to be repeated, and conjoined with the mutual actions of reduction and implement betwixt the parties already conjoined; and conjoin the whole of these actions accordingly; sustain the reasons of reduction of the said minute of sale, and also of the disposition, both produced and founded on by the defender, George Ranken, and reduce, decern, and declare accordingly; sustain the defences for Hugh Goodlet Campbell in the action of implement; assoilzie him from the conclusions of that libel, and decern; and remit to the Lord Ordinary to hear parties further on the other conclusions of the libel at the instance of the said Hugh Goodlet Campbell, and to do therein as he shall think just.”
Dec. 6, 1805.
On reclaiming petition the Court adhered.
Against these interlocutors the present appeal was brought to the House of Lords.
Pleaded for the Appellant.—Assuming, upon the opinions delivered by the judges of the Court of Session, that the late Hugh Logan had the power to dispose of his lands at pleasure, and that the respondent, his heir at law, is bound to fulfil the obligation Mr. Logan came under by the contract or minute of sale with the appellant, if it be a subsisting deed; and assuming that Mr. Logan was in possession of all his faculties, and that his intention was to reward the appellant for his valuable services, while no vestige of fraud appears, the only question then for consideration is, Whether the contract or minute of sale was abandoned or given up by the parties? And if it was not, Whether it be still an efficient instrument, affording action to the appellant, did it stand alone? Either the respondent is barred from challenging the disposition on the head of deathbed, by want of interest, seeing that deed was not to the prejudice of the heir at law, but more favourable to him than the contract which was executed in liege poustie; or if he chooses not to concede this, but to insist on his privilege, then he is bound to fulfil the contract in terminis, and the decree reducing it
Pleaded for the Respondent.—The feu-disposition granted by the late Mr. Logan of Logan, in favour of the appellant, on the 23d of January 1802, is reducible ex capite lecti, this deed having been subscribed by the late Mr. Logan within less than sixty days of his death, and after he had contracted the disease of which he died. The only answer attempted to be made to this plea is, that the respondent is alleged to have been excluded from the succession, by the previous minute of sale of the lands, executed on the 16th September 1801, when Mr. Logan was in liege
After hearing counsel, it was
Ordered and adjudged that the interlocutors complained of be, and the same are hereby affirmed.
Counsel: For the Appellant,
For the Respondent, Wm. Adam, Matthew Ross, David Monypenney.