A principal sum was not exigible till after the marriage of the creditor. She died unmarried. Argued, The annualrent must cease, quia sublato principali tolliur accessorium. The annualrent found to subsist until redemption by the debitor, being constituted pure and as a principal right.
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Sir William Steuart having granted a bond upon these terms: That whereas he had obtained disposition of the lands of Innernytie, partly by his father's means, and partly by his own, and partly for granting the bond underwritten; and therefore he obliges himself to insert Jean Steuart, his sister, and the heirs of her body; whom failing, certain persons substitute, his brethren and nephews, and part of it to return to himself; and obliges himself to pay the annualrent yearly to the said Jean, and the heirs of her body, and other heirs of tailzie foresaid, during the not redemption of the said annualrent; then there is insert a reversion of the annualrent, from the said Jean, and her foresaids, by the said Sir William, upon the payment of 20,000 merks; and then a clause of requisition, that if Jean, after her marriage, desire the money, she, or her foresaids, might require the same to be paid, after her father's death; and then a clause, that the said sum of 20,000 should not be payable till five years after her father's death, and after her own marriage. The said Jean, assigns this bond to her brother, Sir Thomas; and he charges Sir William; who, and some of the other substitutes, suspend on these reasons: First, That by the conception of the bond, it was clear, the principal sum was not payable till Jean's marriage; and she being dead, unmarried, is not now payable at all: whereupon the charger insisted for the bygone annualrents, and for granting an infeftment of annualrent to him, as assignee, conform to the bond. The suspender's reasons against the annualrent, were first, That this being an annualrent, accessory to a principal sum, ablato principali tollitur accessorium, so that the principal sum being not now due to any by Jean's death, dying unmarried; the annualrent also must cease from her death. Secondly, The annualrent is conceived payable to Jean, and her heirs; but no mention of assignees. Thirdly, Albeit ordinarly, in such obligations, or infeftments following thereon, the first person is fiar, and the substitutes are but heirs; who cannot come against the fiar's deed, by assignation, or otherways; yet, where the obligation is gratuitous, and proceeds, not upon sums of money belonging to the creditor, but upon the free gift of a parent, bestowing the sum; there the substitution, implys a substitution and obligation upon the first person, and the heirs of their body, to do no voluntary deed to evacuate the substitution; so that, albeit a creditor or successor, for a cause onerous, might exclude the substitutes; yet another heir, appointed by the first person, or a donator, or gratuitous assignee, cannot evacuate the tailzie, and exclude the substitutes; because in such contracts, uberrimæ fidei, the mind of the party who gifted, and freely granted the sum, is chiefly to be considered; so that it cannot be thought to be old Gairntilly's mind, that his daughter might change the substitution, and elude the conditions of the bond; for the suspending of the requisition of the principal sum, till Jean were married, must import, that his meaning was, to give her the annualrent only till that time, and the principal sum to be a tocher if she married; which was to no purpose, if the annulrent remained perpetual; for then the heritor would certainly redeem, to purge his hand, as he had done; and the sums consigned, would belong to the assignee; and the clause, suspending the payment thereof, if Jean married not, signified nothing; sed verba sumenda sunt cum effectu; and the meaning of the parties, and conception of the condition suspensive, must be preserved.—The charger answered, That he opponed the bond, wherein, without all question, Jean was fiar; and the substitutes, being the heirs of tailzie, cannot quarrel her deed, but are bound, as representing her, to fulfil the same; and, albeit Jean's assignees be not expressed, they are ever included, where they are not expressly excluded. Neither is this annualrent stated as a mere accessory; because the requisition of the principal sum may be discharged, or may become, by the suspensive clause, ineffectual, as now it does; and yet the obligement or infeftment of annualrent, remains a perpetual right, though redeemable at the debitor's option; neither is there, by law or custom, any difference or exception, whether the annualrent be gratuitous, or, for a cause onerous: And for the meaning of the father, procurer of the bond, it must be understood as it is expressed, only to exclude the lifting of the principal sum by Jean, upon the clause of requisition, if she were not married; and, if his mind had been otherways, it had been easy to have adjected a restrictive clause; or, instead of the substitution, to have set down a provision, that if Jean died unmarried, the annualrent should belong to her brothers and sisters nominate; but this being an ordinar, single substitution, hath neither expressly, nor implicitely, any condition or obligation upon the fiar, not to dispone.
The Lords repelled the reasons of suspension; and found Jean to be fiar or the annualrent; and that she might assign the same; and that the substitutes should not quarrel the same.
