A father having disponed a subject to his daughter under an irritancy; in this case, considered to be favourable for the disponor, the irritancy was allowed to be declared by exception.
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James Adamson having disponed a tenement to Joseph Johnston, who married his daughter, in conjunct fee, and the heirs betwixt them, which failing, to divide between their other heris; in the disposition there was expressly this clause, providing that the said Joseph, and his foresaids, make payment to the said James Adamson, or any he shall name, the sum of L. 600, wherein, if he failzie, the said right and disposition shall expire ipso facto. In the infeftment the former clause was repeated, but not the clause irritant. This Canham apprises the land from Joseph Johnston, upon Joseph's debt, and being infeft, did pursue James Adamson for removing, who, objecting the proviso, was notwithstanding decerned to remove. Now he pursues for the mails and duties during his occupation. James Adamson alleges that he ought to have the L. 600, because he had disponed with that provision. It was answered, This was but personal to pay, and could never oblige a singular successor; and all the pursuer could do was to proceed upon the clause irritant by way of declarator.
The Lords, in the end of the last session, having only seen the disposition containing the said clause, but not the infeftment, repelled the defence, but reserved the declarator; but now having seen, that the proviso of payment was in the infeftment, the cause being so favourable, a person disponing to his own daughter, and goodson, and the disponer yet in possession, they did, without multiplying further process, sustain it by exception.
