Scottish Court of Session Decisions

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

Sir James Dundas
v.
L Swinton.

Date: 8 February 1628

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In an action of reduction, betwixt Sir James Dundas and L. Swinton,—the Lords sustained the action at the pursuer's instance, upon the base infeftment of the lands libelled, granted to him, flowing from the L. of Newbyres, who was also infeft therein, by a base infeftment holden of the L. Houburn, his author, for reduction of a public infeftment of the same lands, granted to the defender by the said L. of Houburn, before the right made to him by the L. Newbyres; because there was an argument and reason joined with this base infeftment, whereby the said public infeftment was desired to be reduced, viz. a back-bond given by the defender, that, if he paid not a sum contained in the back-bond, at the terms therein contained, that, eo casu, his infeftment should fall; likeas the pursuer subsumed upon the failyie, so that the dispute was not, if the base, or the public infeftment, should be preferred, but if that public infeftment was reduceable upon the reason founded on the back-bond. And which was sustained; but Houburn himself, in whose favours the back-bond was made, was also pursuer. In this process also, the Lords found that a charter granted by the L. Houburn to Swinton, which had no relation to be done, for satisfying of a preceding bond of alienation of lands made to him by the L. Houburn, nor had no dependence upon the same, but which was made after the bond of alienation, and also after the back-bond whereupon the reason was libelled, and which charter had no cohesion with the same, but was made of a posterior date, and bearing to be done for causes onerous; and which the defender alleged therefore could not be affected with the condition of the said back-bond, seeing the back-bond provided, “that in case of failyie therein contained, the alienation made to the defender should be null;” and so the same might affect the bond of alienation, preceding the back-bond, but could not affect nor touch this charter subsequent, done after the back-bond, which was a distinct and several perfect act, not made conform or referring to another preceding bargain, but which subsisted of itself, without respect to any other preceding writ. This charter was found to be a part of the first alienation made to Swinton, and to depend upon the preceding bond of alienation of the lands made to him by Houburn; and that the back-bond should strike against it, albeit it was after the same; because the defender could not show, nor allege any other cause or bargain, for implement whereof he had acquired the same, by and attour the first bond of alienation whereto the back-bond had relation; so that the same was reputed to depend upon that preceding bond of alienation, it being also done in August, viz. the said charter and bond of alienation in July, few days before; and the said charter being granted in August, was anterior to the term of Martinmas, at the which term the sum was, by the back-bond, appointed to be paid, with the provision of failyie foresaid: which all discovered the charter to be a part of the preceding alienation; seeing the analyier was obliged to give to the defender two infeftments, one to be holden of himself, and another of the superior; and seeing the defender could not show that he had acquired another charter, relative to the bond, and depending thereupon. Therefore the exception thereon was repelled, and the back-bond found to affect the same. Neither was it respected, what the defender alleged, that, in the bond of alienation, the disponer's liferent was reserved; whereas, in this charter, no such reservation was contained; whereby he alleged it was manifest that it was not to be reputed a part of the first bargain. Which was also repelled.

Act. Aiton and Nicolson. Alt. Cunninghame. Gibson, Clerk.

Vid. 20th December 1632, L. Innerweek.

Page 342.