A person having borrowed money granted a security to the creditor, by disponing lands in the form of an absolute disposition, but at the same time took a back-bond, declaring, that the lands should be redeemable within a limited space. Redemption was found competent at any time before declarator.
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One Cleghorn in Cramond, having borrowed from Ferguson in Muirhouse 500 merks, he dispones to the creditor his lands in Cramond, which creditor, viz. Ferguson gives at that same time a back-bond to Cleghorn, that if, at the Whitsunday thereafter, which was in anno 1634, or within 15 days thereafter, he should repay his money, with the profit thereof to the term, then to repone him, otherwise the back-bond to become null; after which term Ferguson obtained decreet of removing upon his said infeftment; thereafter Cleghorn, and his assignee, Brown, charge upon the back-bond to repone the said Cleghorn, in and to his own right, and offer to repay the money; which being suspended upon the tenor of the back-bond, and clause thereof, appointing the back-bond to be null, if the sum were not precisely paid within 15 days after Whitsunday 1634, and so after so long a time, that day being expired, there was no place to offer the money and purge the failzie; especially whereas he had reformed the lands, and bestowed more expenses in repairing thereof than the land was worth; and the other party offering to pay the money cum omni causa, and all his charges, at the Lords' modification, he alleged, he ought to be reponed, seeing these clauses are not allowable in law, being pacta legis commissoriæ, which in law are always reprobated in pignoribus, as this is, especially there being no declarator ever sought upon the failzie, which if the party had sought, he would ever have been suffered to purge the same, and would so have done; and the other alleging, That after so long time, no reason could permit him to purge the failzie, and the decreet of removing is in place of a declarator;——the Lords found, that notwithstanding of the intercourse of this time of two years, since the failzie was incurred, that the party might be heard to purge the failzie, the creditor being satisfied of his sum and annualrent, and all the charges bestowed upon the beiting of the house; for this being pactum legis commissoriæ in pignore, they would not allow it; and being adjected as a penalty for failzie, to pay the principal sum at the time appointed, they thought it not reasonable to allow so great penalty so far transcending the ordinary annualrent; and therefore they ordained the parties to count upon the annualrents, and the charges debursed by the creditor upon beiting of the houses.
Act. Gilmour.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 486. Durie, p. 811.
