Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

James Bruntfeild
v.
Margaret Edgar

Date: 9 December 1664

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John Edgar having right, by progress, to a wadset of land of Hassindean, flowing from Alexander Bruntfeild, redeemable for the sum of 5500 merks; the said John dispones the same in favours of James, Anna, and Margaret Edgars, his children, viz. to James, the sum of 3000 merks; to Anna, £1000; and to Margaret, 1000 merks. In which disposition it is provided, That it should not be lawful for the said John, in his own lifetime, to uplift the said sum, and to divide and dispone the same in favours of the said James, Anna, and Margaret Edgars. And farther, it is provided, That in case it shall happen any of the said children to depart this life, not having lawful heirs the time of their decease, whenever the same should happen, their portions to accresce to the rest surviving. Upon this disposition the children are infeft, and inhibition served against the father in anno 1647. Thereafter, by an agreement betwixt the father and James Bruntfeild, son to Alexander Bruntfeild, the first wadsetter; it is agreed, That the wadset lands should be redeemable, either by payment of the sum contained in the reversion, or by procuring assignation, from Nicol Edgar, to as many debts as would amount to the sum of 5500 merks, due by the said John Edgar, or from any other of the creditors; which assignation the said John, as taking burden for his children, did oblige him to accept, in place of these sums due upon the reversion. And it is provided, that, in case the assignation be not purchased betwixt and Whitsunday 1667, then the agreement to be null, and the children to bruik the lands, aye and while they be redeemed by payment or consignation of the sums contained in the reversion. James and Anna Edgars being deceased, and Margaret only in life; and James Bruntfeild, having purchased assignation to the said John Edgar his debts, pursues declarator of redemption: wherein Margaret Edgar, the only person alive, and substitutedto the rest, compears, and alleges, There can be no redemption nor declarator of the order, because the defenders were not premonished to accept of the assignations, but of money, and far less to accept of assignations to bankrupt debts; and that any reservation containedin the disposition made by the father to the children, that he should have power so to do, had not this effect, that he might accept of assignations to bankrupt persons, and so to evacuate the children's right; but was only an act of administration, as being tutor-in-law to his children; in whose prejudice he could do no deed; especially the assignation being procured after Whitsunday 1661, by the space of eight years, and the father, John Edgar, deceased. The Lords found, That the father, John Edgar, could not alter the condition of the disposition conceived in favours of the children, to their prejudice; and therefore ordained the pursuer of the order to pay the sums of money therein contained; and found, that the children were not obliged to accept of assignations to the debts mentioned in the subsequent agreement betwixt the father and the pursuer, in regard they were not purchased debito tempore.

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