Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Mary Lyon
v.
Sir Robert Scot

Date: 25 February 1623

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Sir Robert Scot, eldest lawful son to Sir Robert Scot of Thirlstane, by his obligation given to Mary Lyon, obligeth him to take her to his wife; and also obligeth him, how soon he or his heirs should succeed to his father's living of Thirlstane, to infeft the said Mary in an annual-rent of 1000 merks, to be uplifted out of the said lands and living of Thirlstane. Sir Robert after his marriage with the said Mary, being deceased, Mary having registered the bond against a brother of the said umquhile Sir Robert, who was served heir of line to the defunct; and against the father who was served heir of provision to him, for the defunct, the time of the bond and before, stood infeft, and the heirs gotten of his body, in some lands conquished by his father to him, which were not of the old living of Thirlstane, which were by the infeftment, in case of failyie of heirs gotten of his own body, provided to his father and his heirs, and so he succeeded to his son in these lands, as heir to him by provision;—and they being charged for implement of this bond, the letters were simpliciter suspended for the heir of line, who was ordained first by the Lords to be discussed, in respect of the tenour of the bond, whereby the maker obliged him and his heirs, how soon they should succeed to his father's lands of Thirlstane, then to infeft her; and true it is, that the father was yet in life, so that he could not succeed to these lands, and so could not be debtor to her. This reason was found relevant to liberate the heirs of line, and thereby he was found sufficiently to be discussed; and thereupon execution being sought in the second place against the father, who was served heir of provision to his son in the foresaid other lands; the father using this same reason of the heir's, founded upon the tenour and quality of the bond; that albeit he succeeded to his son in the lands foresaid, by the provision of the infeftment, yet he had not succeeded to him in the lands of Thirlstane, wherein his son was never infeft, but whereof himself was ever heritor, and to which his son could pretend no right, and so he could not be obliged; for it were a dangerous example to authorize a bond given by the son, thereby to bind the father without his consent, or any deed done by him, to fulfil the son's obligation in an act contracted by himself, without advice of the father. This reason was not sustained for the father, but the letters and charges were ordained to have execution against him, in respect he was heir by provision to his son, and that he was possessor of the lands of Thirlstane, after he had served himself heir of provision to his son, by the same manner as he possessed the said lands before that service.

Act. Hope and Scot, Alt. Nicolson and Lermonth. Gibson, Clerk.

Page 50.