Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

Alexander Fraser of Philorth
v.
Lord Frazer

1663. February.

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The deceased Sir Alexander Frazer of Philorth dispones to Alexander Frazer of Durris, in liferent, and Robert his son, in fee, the lands of Cairnbulge and others, with this express provision, that, during the life of Philorth and old Durris together, it should not be lawful to young Durris to dispone the lands to any person whatsoever, under the pain of £10,000 pro damno et interesse ex pacto convento; and if, after their death, he should be content to sell the lands, he should make the first offer thereof to Sir Alexander's heir-male, or any other person he should design, bearing the name and arms of Frazer, for £38,000; and, in case of their refusal, to some other person substituted successivè, of whom Andrew Frazer of Staniewood was one. This disposition, by way of contract, was dated anno 1625, and thereupon inhibition served at Sir Alexander's instance against young Durris. Sir Alexander assigns his oye, Alexander Fraser, now of Philorth, thereto: who intents reduction of the right made by young Durris to Staniewood, (and in the reduction he calls the apparent heir of Durris, and this Lord Frazer apparent heir to Staniewood;) and that in so far as the same doth concern the clause anent the payment of the sum of £10,000. It was alleged for the defender, Absolvitor, because the sum is moveable, and cannot pertain to the pursuer as assignee, because the defender or his grandfather has right thereto from — Forbes of —, donatar to the escheat of the said Sir Alexander; and which escheat is declared, and his sum, per expressum, declared to belong to the donatar; Sir Alexander also compearing. It was answered, That the decreet could not militate against this pursuer, on this head,—That the grandfather was debarred by horning, and thereby impeded to propone his defences; which could never have prejudged the rebel himself, if he had been thereafter relaxed; multo minus his oye, who pursues as having right: and if his grandfather had been heard, he had this defence to propone, from which he was maliciously debarred, viz. the sum is heritable, and cannot fall under the compass of the single escheat, because it is payable intuitu of an heritable disposition made of an estate, and, in effect, as a part of the full avail and price pro damno et interesse; the estate being the ancient fortune and chief house of Philorth, sold far within the avail to Durris, being of his own name, whom Sir Alexander bound up from disponing to any other in his own time, and who provided a reversion to his heir-male, if he should dispone after his death: and the price, being surrogatum, est ejusdem naturæ with the bond, and ought to belong to Philorth and his heirs-male, just as the lands would have done if they had not been sold; the contract being clear, and binding Durris not to dispone in Philorth's time; and if he should sell after his death, giving the reversion to his heir for payment of the sum received by old Philorth, which was far within the avail of the land; and to make up the avail, this £10,000 was condescended upon, pro damno et interesse, in case of selling ut supra. It was replied, That the £10,000 was not a part of the price, but pæena, in case of doing a deed prohibited;—that it would have fallen to Philorth's executors;—that Philorth reserved no reversion of the land to himself, but disponed the same irredeemably, only under a prohibitory clause not to sell it to another, which, of the law, is reprobated. Duplied ut supra, And that the sum, if Philorth had died, having right, would have belonged to his heir-male, to whom the estate should have appertained, and in whose favours a reversion was conceived ut supra, and not to his executors; and such clauses, conceived upon so reasonable and just considerations, are by no law reprobated. Much more was said, pro et contra, in præsentia. The Lords found the sum moveable; me et multis aliis contradicentibus.

No. 79, Page 59.