Death-bed Deeds are Effectual, and afford jus exigendi, unless Challenged by the Heir.
Thomas Dickson v. John C -
Date: 16 January 1581 Case No. No 27.
An heritable bond, without infeftment, was alienated on death bed. Asourancient laws mention only terræ et tenementa, it was found not to fall under the law of death-bed.
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There was one Thomas Dickson, son to Allan Dickson, burgess of Edinburgh, who being made assignee to ane decreet obtained be his father against umquhile John C., the whilk decreit was obtained against the said umquhile John, decerning him to infeft the said Allan in certain annualrents heritablie, persewit John C., as nearest and lawful heir to the said umquhile John his father, to hear and see the said decreet transferred active et passive. It was alleged be the defender, that the persewar could have no action as assignee to the decreet to pursue for the translation of the same, because the assignation was null in itself, being made be the said umquhile Allan Dickson, eodem die quo fecit testamentum, et sic in lecto ægritudinis. Et secundum jus regni prout in rubrica c. 1. 2. in fine legum burgorum, ubi fit mentio de consuetudine partium in Scotia; nullus burgensis potest terras, quas hereditarie possidet, in lecto ægritudinis alienare, vel quas in sanitate sua acquisivit ab herede, nisi ære alieno esset oneratus, et heres non potest eum in necessitate sua relevare. But so it was that the said assignation of the decreet to infeft heritablie in annualrents was equivalent to heritage, et sapiebat naturam movabilium, et alienationis terrarum. To this was answered, that the law of the Majesty could not be extended to assignations and debts, but only to heritage, where infeftments or sasines were obtained of the same. The Lords, after long reasoning among themselves, voted for the most part and would not give process upon the said assignation, and admitted the allegeance that it was made in lecto ægritudinis.
