Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XXIII.
Effect of a Charge of Horning.
Donaldson v. Donaldson
Date: 24 February 1624 Case No. No 124.
A bond bearing annualrent payable on a simple charge of six days is rendered, moveable by a charge of horning.
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In an action of reduction pursued betwixt Donaldson and Donaldson, whereby the heir pursues his brother for reduction of an assignation, made by their father in his death-bed of a bond, for payment to the father of a sum, and to his heirs, and bearing the debtor to be obliged to pay annualrent, as well not infeft as infeft, and so the bond being heritable, and which by law could not be assigned by the father to his second son the defender, upon his death-bed, in prejudice of the heir, this reason was sustained and found relevant, albeit no infeftment followed upon the bond, and albeit the bond was not of that nature, and tenor, whereupon the debtor might be compelled to give infeftment, seeing he was not therein obliged thereto, but was only obliged to pay annualrent to the creditors, and his heirs, as well not infeft as infeft; but the reason was thereafter elided, by this exception, viz. that the father in his lifetime, before the assignation controverted, had charged the debtor for payment of the principal sum, conform to a clause of the bond, whereby the debtor was obliged to pay the same upon a simple charge of six days, by the which charge the sum was become moveable, and so might lawfully be assigned, as a bond moveable after the charge, to any person whom the father pleased, and could not be quarrelled by the heir, which exception was found relevant.
In this process, the Lords also found, that no man upon their death-bed may assign or dispone any thing (albeit it were of his moveables) except in quantum may be found to pertain to their own part, after their decease, and no further than by testament; but there being no reason libelled thereupon in this process, but only the pursuit moved here by the heir, to whom this reason was not competent, the action received no decision upon this ground.
Fol. Dic. v. 1. p. 374. Durie, p. 113.*** Haddington reports the same case:
Gordon Andrew being obliged to umquhile Mr James Donaldson in the sum of 4000 merks, payable at four terms, and in annualrent during the non-payment, Mr James made his second son Robert assignee to this bond. James Donaldson, eldest son to the defunct, pursued reduction of the assignation, because the bond was conceived to Mr James and the heirs of his first marriage, and alleged, That the assignation was made by Mr James in lecto agritudinis. The Lords first assoilzied the defender for the annualrents received by the assignee by virtue thereof before the reduction intented. Thereafter the defender alleged, That before the assignation made to him by the space of six weeks, his father had made the sum moveable by charges of horning to pay it. It was answered, That notwithstanding thereof, Mr James had in effect passed from the charges, and acknowledged the sum immoveable by the assignation, whereby he had made his son Robert assignee to the sum and to the annualrents thereof, for terms bygone and to come, likeas, the assignee had acknowledged the bond heritable by receiving payment of the annualrent for terms after his father's decease. Notwithstanding whereof, the Lords considering that charges for payment of the principal sum had once made it moveable, that the addition of the clause in the assignation for annualrent of terms bygone and to come altered not the effect of the charge and bond, and that the receipt of subsequent term's annualrents by the assignee altered not the nature of the bond and assignation, since it was not unlawful to him to take payment of annualrent so long as the sum was not paid, albeit the bond had been moveable, and therefore found the exception relevant
