Scottish Court of Session Decisions

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

John Rentoun
v.
Rentoun of Lambertoun

Date: 20 December 1638

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Umquhile John Rentoun of Lambertoun, being married upon one Hume, father-sister of Hume of Rentoun, to his second wife; by contract of marriage he is bound to infeft her in certain lands, during her lifetime; and the said umquhile John Rentoun the husband being deceased, she makes the said Laird of Rentoun assignee to the said contract, who pursues registration of the said contract against John Rentoun, eldest son to the said umquhile John Rentoun her husband, contractor, and convenes him as successor to his father titulo lucrativo post contractum debitum; and, for verifying of him to be so successor, produces a bond granted by the defender to his umquhile father, of this tenor, viz. for sa meikle as his said father had provided and given way (thir are the words,) to his provision to the lands of Lambertoun; therefore he obliged him to relieve his father of all debts and sums owing by his said father: And the defender alleging that this bond could not prove him successor titulo lucrativo; for that narrative clause anent the providing of the defender, or giving way to his provision, being but narrative words, cannot be found obligatory to constitute the defender successor titulo lucrativo; seeing the truth is, and he offers to prove, that, whatever provision he has attained to, it is for causes most onerous, and for sums of money debursed by the excipient, far exceeding the avail of that which he has obtained by the said provision; and condescended on the particulars and instructions thereof: and albeit that clause of the bond, obliging him to pay his father's debt, be a good ground whereupon he might be pursued by way of action to pay the same,—in which case, when he is so pursued, he shall elide the same,—yet, that he can be convened as successor titulo lucrativo, where he does instruct so clear a cause onerous,—it is against all reason, law, and conscience; and only for a word narrative, which by no equity can be drawn to such an extent; for if, by the bond produced, the defender had been obliged to pay some particular designed debts therein-named only, it were iniquity to conclude (albeit the narrative had been of the same tenor whereof it is,) that therefore the defender should be found successor titulo lucrativo to his father, and were thereby holden to pay all his father's other debts, by and beside the special debts which he was bound to pay, and which he never could eschew in law, if this ground hold that the words foresaid in the narrative makes him successor; —the Lords repelled this allegeance; and,—in respect of the foresaid words, by the which the Lords found that the defender had acknowledged himself to be provided by his father, and so to be successor to him,—they decerned the contract to be registrate against him, hoc nomine, as successor, as said is.

Act. Advocatus and Nicolson. Alt. Stewart and Craig. Gibson, Clerk.

Vid. 21st March 1631, Orr.

Page 868.