Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Petrie v. Richart
Date: 24 July 1666 Case No. No 22.
The knowledge of a contract of wadset not entered in the register of reversions, found not to infer homologation, as the party was not obliged to tike notice of it.
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Richart of Auchnacant having a wadset of 12000 merks from Buchan of Portlethem, did thereafter enter in a second contract with Buchan's son and heir, who had right to the reversion; and divers years back-tack duties being accumulated and made a principal sum, it was agreed that there should be no redemption but by payment of the sum contained in the said second contract, made up as said is, of the sum contained in the said second contract, and the back-tack duties; and by payment of the annualrents so accumulated. Mr Petrie, provost of Aberdeen, having acquired the right of reversion, and having used an order of redemption, and thereupon having intented declarator, it was alleged, that he should have consigned the sum contained in the said second contract, which he could not misken, by reason as he not only knew of the said second contract before he acquired the said right, but acted in relation to the said contract and in effect homologated the same, in so far as, 1mo, By the said second contract, he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan, what should be paid to Buchan for the charges he had been at in prosecuting his right against Richart, the said Petrie had accepted a submission relating to the said second contract, whereupon a decreet-arbitral did follow, ordaining 300 merks to be paid to Buchan for his charges; 2do, By the second contract, Buchan was obliged to cause Petrie (being his friend) to give bond that he should engage for Buchan's performance of the said second contract; and accordingly, Buchan being charged to fulfil that head of the said contract, had procured a bond from the said Petrie, and produced it in judgment the time of the discussing of the suspension; 3tio, Petrie had assigned the 300 merks of charges modified by himself, and the instrument of intimation of the assignation mentioned the said sum to have been modified by the decreet arbitral, proceeding upon the said contract. From these acts it was urged, that knowing and having homologated the said contract in manner foresaid, he was in pessima fide to take a right in prejudice of the defenders, and to pretend to be in better case than his author.
The Lords notwithstanding found that the said second contract not being registrate in the register of reversions, he was not obliged to take notice of it; and might redeem by payment of the sums contained in the first contract. It was acknowledged by some of those who were for the decision, that these acts imported an homologation; but the second contract though by our law valid, was not favourable, and was against the common law; in so far as the accumulating annualrents to be a principal sum, is usura usurarum ǽγæτοχισμϬ, I have often urged that favour is not nomen juris, and law ought to be uniform, and not Lesbia Regula pliable and variable upon pretences of favourable or not favourable; Sed nunquam credita Teucris Cassandra.
