Scottish Court of Session Decisions

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

Nicol Hume
v.
Fish

Date: 13 February 1636

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One Nicol Hume, having sold his lands of ——, with consent of John Hume, his eldest son, and apparent heir to Archibald and Alexander Fishes, for the sum of 6000 merks; which sum, by the contract of alienation, is appointed to be paid to the son foresaid (the father being in distress for debt;) and according thereto, the sum being paid to them, and the buyer having received a discharge thereupon, subscribed both by the father and the son; which discharge the son desiring to be reduced upon a reason of minority and lesion: And the defender alleging, that he offered to prove, that, according to his discharge, he truly and really made complete payment of the sum to the father and to the son, being both personally present together, and receiving the same; which was all he was obliged to do by the contract: likeas, the pursuer was then twenty years of age, neither was he fiar of the land, but the right was only in the father's person, and his consent to the father's alienation was in effect unnecessary and superfluous:—the Lords, in respect of this exception, assoilzied from this reason and action, and found the discharge sufficient, and sustained the same; neither was it respected that it was replied for the pursuer, that the real payment (which was offered to be proven for the defender by witnesses insert,) ought not to be respected; except that therewith the defender would also astrict him to prove that the sum, after the payment, was employed to his use; without which had been done the payment could not be sustained, although never so really made, quia qui credit vel solvit pecuniam minori, quamscit, vel probabiliter scire potuit, minorem fuisse, consumpturam, sibi imputet; et talis solutio in jure solventem non liberat: likeas the pursuer, in fortification of his reason, offered to prove that he had right to the land then, by virtue of tacks set to him, for the space of two nineteen years by the father; conform whereto he was in possession; and sq he was heavily prejudged, it being of verity that the land was worth a far greater price to buy and sell than the price paid. Which answer was not respected; but the exception sustained, as said is, in respect the son had no other right, and the payment was made to the father and the son, both being present, and that the contract appointed payment to be made to the son, who received it; and the tack wras not respected, the son remaining in the family with his father, and being then minor, and so being a private deed betwixt so conjunct persons; neither was it found necessary to prove the real payment, in respect of the discharge subscribed both by the father and the son; in respect of which discharge absolvitor was given.

Act. ——. Alt. Craig. Gibson, Clerk.

Page 795.