Deeds in minority when ipso jure null, when requiring a restitutio in integrum.
Hamilton v. Sharp, and Others
Date: 2 February 1630 Case No. No 101.
A reduction was pursued by a minor's successor, of an alienation made by the minor and his curator without the sentence of a judge. The Lords refused to sustain this reason of reduction, unless the pursuer would also allege lesion; and found also that this ought to be pursued within the quadriennium utile.
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Sir John Hamilton intents a reduction against Mr John Sharp, John Inglis, and one Armour, for reducing at his instance as proprietor of the lands of Bargany, an infeftment public, anterior to his right of annualrent of L. 1000 out of these lands, granted to the Lord Ochiltree by the Laird of Bargany, and Josias Stuart his curator, for the cause expressed in the said infeftment. The reason was the minority of the disponer, and want of authority of the Judge Ordinary, viz. the Lords of Session, finding upon trial the alienation necessary, and for the good of the minor. Which reason the pursuer alleged to be relevant quocunque tempore, as well post annos utiles minoris as within the same, whenever it were pursued to reduce such alienations; and that as it was enough to the minor himself after the expiring of these years after his minority, so to his successors, to reduce upon that ground of wanting of a sentence of a Judge, albeit he qualified no lesion done thereby to the minor, seeing he alleged it to be a nullity of the law, and that the deed being null of the law, as is evident by the civil law de alienationibus prædiorum minoris, and that this case was different from the restitution of minors upon lesion, which requires pursuit to be made within four years after minority. The Lords would not sustain this reason, except the pursuer joined therewith lesion; and also found, that the same ought to be pursued within four years after the minority, as is appointed by the ‘L. 3. Si quando Cod. Si major factus alienationem factam sine decreto ‘ratam habuerit, quæ est tit. 74. lib. 5. Cod.’ and because the pursuer condescended in his reason upon lesion, and that he replied, that the minor himself had revocked debite tempore, and intented his action of reduction of that alienation; therefore this reply was sustained to interrupt the prescription, and it was found, it being so interrupted once by the minor himself, the singular successor might de novo intent this new action of nullity, without necessity to insist upon that prior reduction. See Personal and Transmissible.
Act. Stuart.Alt. Nicolson.Clerk, Gibson.
Fol. Dic. v. 1. p. 579. Durie, p. 488.
