Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. I.
In what cases the privilege competent.
Hamilton v. Matheson
Date: 25 November 1624 Case No. No 6.
A purchaser of land who had granted a subaltern right to a minor's predecessor being attacked in a reduction, was found not to have the privilege of stopping process till the minor's majority, altho' if the reduction should succeed, it behoved to affect the minor's interest.
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In an action betwixt Hamilton contra Matheson and others, for reducing of a contract of alienation of lands, and of diverse subsequent securities of the said lands made to subaltern persons in consequentiam, as depending upon that contract; the Lords found, that one of the defenders being minor, whose father had acquired a subaltern right of a part of the said lands disponed by the said principal contract, which was principally quarrelled; and being heritably infeft in a part thereof, ought not to be compelled to dispute upon her heritage in her minority; albeit it was replied by the pursuer, That seeing her right was not principally nor originally quarrelled, but only was a dependence upon a contract made betwixt other parties; and which contract was only drawn in question upon nullity; that therefore her minority could not hinder the course of the process for annulling of that contract, wherein she nor her father were not parties, they having only acquired a subaltern right, as said is, from the party contracter; against the which principal contracter the action was pursued; which reply was not respected; for the Lords found, That a minor ought not to dispute upon heritage, whether they had right thereof originally, which was controverted, or if the same depended upon another original, and so would fall in consequentiam; in neither of which cases, the Lords found that the minor ought to dispute her right.
In this action, notwithstanding of the minor's excuse foresaid for her part of the land, yet process was sustained against the rest of the defenders who were majors, for the remanent of the land whereto the minor had no right, albeit it was alleged by the defender, that propter continentiam causæ, process ought to stay for the whole land during the minority foresaid, in respect that it was alleged that if the cause should decide against the rest of the defenders, that decision would militate thereafter against the minor, when she should be convened in her majority; so that the admitting of her minority now to stay process against herself, would not be profitable to her thereafter; and, seeing the subject controverted was only a contract, which was a body of a writ and could not be divided, the same ought not to be reasoned betwixt any other parties, but ought to cease for them all; which allegeance was repelled, and process found against the majors, seeing the minor had gotten the benefit of the law by staying of process against her, which ought not to hinder the course of law against majors; but it is to be considered, that minors being in ward, and during their ward called to warrant any deed, which otherwise they are obliged to warrant, are not holden to answer during the time of their ward before their perfect age; which privilege for that space also, exeems the cautioner's sons who are majors, for the conjunction of the cause, and is marked in my notes out of Craig, 2. lib. Feud. fol. 155.
Act. Nicolson et Stuart.Alt. Hope et Oliphant.Clerk, Gibson.
Fol. Dic. v. 1. p. 588. Durie, p. 153.*** Spottiswood reports this case:
There having passed a mutual contract for alienation of some lands in Leith, between Margaret Porteous and J. Matheson 1593; this contract was sought to be reduced by Hamilton, son and heir to the said Margaret, because it was imperfect, John Matheson not having subscribed the same. First, It was alleged for Jean Christie, daughter and heir to —— Christie her father, to whom Matheson had annalzied part of the said lands, that this being a plea of heritage, and she minor, non tenebatur placitare super hæreditate. Replied, Her heritage was not quarrelled primario, but only in consequentiam, and so ought not to have the benefit of that law. The Lords having sustained the partial exception for her, it was alleged by the remanent defenders, That propter continentiam causæ the rest's case could not be severed from her's, seeing her right would reduce as well as the rest's, if the contract whereupon all their rights depended, were not sustained. The Lords granted process for the rest, providing always that whatsoever was done against them should not be prejudicial to her. So that all the benefit she had in the interim was to brook hear possession unquarrelled during her minority. V. Stat. 2do Roberti I. c. 17. Ubi privilegium uni collitigantium ratione minoris ætatis concessum, alteri prodest; nam beneficium collatum uni porrigitur ad consortem.
Spottiswood, (Minors and Pupils.) p. 210.*** Kerse also reports this case:
Found quod minor non tenetur placitare super hereditate paterna, albeit his infeftment be craved to fall in consequentiam. But the Lords denied continentiam causæ, and found process against the majors to reduce the contract and right called for, and so could not extend the benefit of the privilege ad majores.
This same found, albeit the father was not infeft, the son always succeeding as heir to his father's conquest, 23d June 1625, Pringle against Home, (infra.)
