Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Tyrie
v.
The Viscount of Stormonth

Date: 20 February 1629

Click here to view a pdf copy of this documet : PDF Copy

The Viscount of Stormonth buys, from one Chalmer, his lands of Drumlothie. In the contract of the alienation, the price of the lands is discharged; but the Viscount gives, to the said Chalmer, (he being in life,) a bond to content and pay to him, at Whitsunday 1619, the sum of 3000 merks; and failing thereof, to infeft the said Chalmer of an annualrent of 300 merks, in liferent, and his son in fee. The Viscount dispones the right of the said land to Mr James Ratray, and takes him obliged to pay the sum contained in the bond, and to relieve him thereof. Mr James obtains a discharge from the said Chalmer, who had annailyied the lands in December 1619. After the death of the said Chalmer and his son, his daughter serves herself general heir to her brother, in whose favours the clause of the said contract was conceived, whereby the Viscount was obliged, in case the sum was not paid to Chalmer at Whitsunday 1619, that he should infeft him in liferent, and his son in fee, in an annualrent of 300 merks, as said is. The said daughter makes Tyrie, second son to Drumkilbo, assignee to her right of the bond, who seeks the bond to be transferred against the Viscount. It was alleged for the Viscount, That his assignee, Mr James Ratray, had made payment to the father, who had power to receive the same, during his lifetime, and had reported his discharge thereupon, produced in process. It was replied, That the father had no power, after the term of Whitsunday 1619, to discharge the sum; because of the destination thereof contained in the bond, whereby the father was ordained to be infeft but in liferent, and the son in fee. It was duplied, That, so long as the infeftment was not granted, and the obligement consisted in nudis finibus, the father had power to dispone upon the money as he pleased, it being the price of his own lands wherein his son was not infeft. The Lords found the exception and duply relevant and proven.

Page 16.