Paction by Declarators, Back-bonds, &c. relative to Personal rights; when real; when personal?
King v. Douglas
Date: 21 July 1636 Case No. No 22.
A liferenter disponed his right to the fiar, taking a back-bond to relieve her of the debt of a former fiar. This found not to affect a singular successor.
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One Janet Douglas relict of James King, being liferenter of a certain sum whereof her son had the right of fee, which Janet dispones to her said son the liferent thereof, and at the very time of the disposition, the same day before the same writer and witnesses, receives a bond from her son, by the which he obliges him to relieve his mother of her Husband's, his father's whole debts, and if he did not, that he should repone her to her own place against that disposition, and in that case declares her disposition to be void; after which the said son makes Janet King his sister, assignee to a part of the said sum, who pursuing the debitor therefore, the said mother compeared, and alleged that she ought to have her liferent, the sum being provided to her during her lifetime; and the daughter opponing the foresaid disposition of her liferent to her son, and the mother duplying upon the said bond granted by her son, done at the same time, as said is, which being pactum incontinenti adjectum must be of force, as if it had been insert in the body of the disposition; like-as she had action of declarator intented upon the back-bond, and her said son knowing that he has failed in the condition of the back-bond, has reponed her; and the daughter answering, that the bond could not work against her, who was a singular successor, and saw a disposition pure and simple, not affected with any such condition, as the back-bond bears; and for the declarator, it is posterior to the right made by her brother to her, and sicklike the disposition is posterior: The Lords found the pursuer's summons, and the answers in fortification thereof, relevant, and repelled the allegance proponed upon the back-bond, which, albeit done at the same sime of the disposition, they found could not prejudge this pursuer, who is a singular successor, but only should work against the granter's self; and the action and reposition being after the right made to the pursuer, and intimation thereof were rejected, seeing the condition exprest in the back-bond was not insert in the disposition in corpore primi juris.
Act. ——.Alt. Heriot.
Fol. Dic. v. 2. p. 63. Durie, p. 820.
