Richardson and the Lord Cranston Riddel v. Sinclair
Date: 30 July 1635 Case No. No 34.
A sale of lands, though for a reasonable price, was reduced ex capite lecti.
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Umquhile Sir Robert Richardson, father to the pursuer, having disponed his lands of Pencaitland to John Sinclair, heritably and irredeemably, for the sum of four score and five thousand merks, whereof 30,000 merks were appointed to be paid to the said Sit Robert's eldest daughter, and 32 or 33,000 merks were appointed for payment of debts owing to his creditors, and the rest was divided among the rest of his bairns, viz. 7000 merks to his second son, other 7000 to his second daughter, and the rest, viz. about 10,000 merks to his eldest son; and the said John Sinclair, being thereupon infeft, holding of the superior, the said Sir Robert thereafter, about the space of one year or thereby dies; before whose decease, the said John intents an action of declarator against the said umquhile Sir Robert in his lifetime, and against the said pursuer, his son and apparent heir, to hear it found and declared, that the undoubted heritable right and property of the said lands pertains to him, by virtue of the said alienation; after execution of the which summons, and citation of the said parties, the said Sir Robert died before any further process was deduced in that action; after whose decease, the said Sir Robert his son, dispones his right of the lands to my Lord Cranston Riddel, and his right to reduce John Sinclair's securities; and the said Sir Robert being served and retoured general heir to his father, the said Lord Cranston Riddel pursues for reduction of the said contract and disposition made by the father to the said John Sinclair, upon this reason, as done in lecto ægritudinis to the heir's prejudice; in which action, the retour being quarrelled, as being done after advocation, and after the judge was discharged to proceed; this allegeance was repelled, in respect that the judge was, by the letters of advocation, only discharged to proceed, ay and while John Sinclair was warned to the day of the service; and the pursuer offered to prove, that he was lawfully warned and cited before the day of the service, to compear to the service, in respect whereof, that being proven (as it was admitted by the Lords to probation) the retour was sustained. And it being further alleged, That this right made to the Lord Cranston Riddel, was null, and could not be sustained to produce this pursuit, but the party ought to be assoilzied therefrom; because, by act of Parliament, it is declared, that it is not lawful to the Lords of Session to buy pleas or actions, or rights pleadable; and this action was of this nature, in respect of the nature of this process, and that the defender had intented his declarator before the right was made to the Lord Cranston Riddel. This allegeance was also repelled, for the said declarator being only execute, but never called in judgment, nor other process deduced thereon, it was found, that the buying of the fight libelled by the Lord Cranston Riddel, was not of a litigious right, which came under the compass of that act of Parliament; also, the Lords found, that the certification of the act of Parliament being express, that such buyers of pleas should be deprived of their offices, it ought not to be extended further, as to the tinsel of the plea, but left to the defender to pursue for depriving of the pursuer: But the act of Parliament declares, that it shall not be lawful to buy any plea, ergo it would appear that if it be not lawful to buy, therefore that such writs are not lawful, and consequently, that such unlawful writs are null, and cannot produce action, but it was repelled ut supra. Also, the Lords found the reason of reduction relevant, although it was alleged, that the said alienation could not be quarrelled as done in lecto ægritudinis, seeing the maker thereof was not affected with any such sickness as might be called lectus ægritudinis, and which was an impediment rebus agendis, and which is called, in law, morbus sonticus, for his disease was lent sickness, which kept him continually in one estate, by the space of two year together before his decease, viz. a palsy in the one arm and leg; likeas, this alienation was made a year or thereby before his death, at the time whereof, and continually thereafter, he had sound and perfect judgment, and did all his affairs as any other healthful provident man used to do; and, as he himself used, before his sickness, both in directing of his business, guiding of his rents, subscribing of his writs, and in his diets, at bed and board; likeas, this alienation being made for the causes within written, of satisfying of his creditors, and of his eldest daughter, which were done, contracted, and perfected, before ever he contracted any sickness, and when he was in full and entire health, and the rest of the sums appointed to his bairns unprovided, which was a lawful act to do, so long before his death, his eldest son being also provided to the rest of the sum of the price, and whose provision the father could not enlarge, in respect the price would extend to no more; and also, that the eldest son had so estranged and misbehaved himself to his father, that his father with difficulty was moved to provide any thing to him: And also, that the defender was content yet to supply and pay, what more price the judge should think expedient should be paid for the lands; all which were rejected by the Lords, and the reason sustained, seeing the party came not out to kirk and market after the alienation, without which had been done by him, the alienation was found could not be sustained; neither was it respected, that the party was of sound judgment; for they found, that the sickness of the body, albeit of never so long endurance, and albeit the judgment was whole, if the party continued unrecovered, and came not to public places, but died thereof, was a just cause to reduce the alienation, although made also for preceding just causes; which the Lords found not enough to sustain the same in prejudice of the heir, as said is; but the reducer was ordained to repay to the defender, the just sums for which the alienation was made, and truly debursed.
Act. Advocatus.Alt. Nicolson & Craig.Clerk, Hay.
Fol. Dic. v. 1. p. 215. Durie, p. 766.
