Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. V.
Clause of Return.
Mackala v. Tenant
Date: 30 January 1627 Case No. No 23.
A debt was taken payable to the creditor alone, during her life, and the sum to belong to the debtor after her death. Found, notwithstanding, the creditor might dispose of the money at pleasure.
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In the cause decided betwixt Thomas Mackala writer, against Mr Joseph Tenant, the Lords found, That an obligation being of this tenor, viz. “Where the debtor was bound to pay the sum therein contained to the creditor, herself allenarly in her own lifetime, and the annualrent thereof yearly to the said creditor during that time;” whereupon inhibition was executed against the debtor, and bearing, “that the sum should pertain to the debtor after the creditor's decease;” the Lords found, That this obligation and inhibition was cessable, and might be transmitted by the creditor effectually in the person of an assignee, and also that the assignee, or the creditor herself, might seek payment of the principal sum from the debtor, notwithstanding of the foresaid clause, appointing the sum to pertain to the debtor after the creditor's decease; which clause did not free the debtor from payment of the principal sum to the creditor, or her assignee, when any of them should seek it, the same being sought in the creditor's own lifetime; but not being sought in her lifetime, it was found that the executor or the heir of the creditor would not have right to seek it from the debtor, in respect of the foresaid tenor of the bond; and therefore, the Lords found no necessity of caution to make the money furthcoming again to the debtor after the decease of the principal creditor, seeing she or her assignee might dispone thereupon at pleasure.
Act. Aiton.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 308. Durie, p. 265.
