Hamilton of Corse v. Hamilton and Viscount of Frendraught
Date: 22 June 1669 Case No. No. 11.
What affords presumption, that a donatar of escheat is a concealed trustee for the rebel?
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Wishart of Cowbardie having wadset his lands of logheads and others, to George Hamilton, from whom the Viscount of Frendraught has now right, he did thereafter sell the same lands to John Hamilton of Corse, who took the gift of Wishart's escheat; and having thereupon obtained general declarator, pursues now in a special declarator for the mails and duties of the wadset lands. Compears George Hamilton and the Viscount of Frendraught, and produced the wadset right, and alleged that the life-rent right cannot reach the wadset lands; because the gift is simulated to the behoof of Wishart the rebel and common author, and so is jus superveniens auctori accrescens successor, to defend this wadset right; and condescends that it is simulated, in so far as it is offered to be proved, that Wishart the common author did allow to the donatar in the price of the lands, not only the sum whereupon the horning proceeded, but also the expenses of the gift; so that it is purchased by the rebel's means, whence the law presumes it to be to his behoof. It was answered, That this condescendence cannot infer simulation to the rebel's behoof, because it was lawful to Hamilton of Corse, finding that his right was not secure to fortify the same by this gift, and in his account of the price of the land upon the warrandice, he might require retention, not only of the sum in the horning, but of his expenses in necessarily purchasing the gift, and might apply the same for the security of the lands bought from the rebel only, which is to his own behoof; but if he were extending the gift to other lands of the rebel's, that might be presumed to the rebel's behoof, because the donatar had no anterior interest of his own to these lands. It was answered, That if the rebel had given the money to purchase the right before it was purchased, it would infer unquestionable simulation; and it is wholly equivalent, that having then the rebel's money in his hand, the rebel ex post facto, allowed the expenses of the gift; 2dly, Albeit such an allowance ex post facto, would not be sufficient, where the donatar acquired the right to the lands bona fide, and then ex necessitate behoved to purchase the gift to maintain his right; but here the donatar was in pessima fide, and most unfavourable, because if need be, it is offered to be proved by his oath or writ, that he knew of George Hamilton's right, and that the same was complete before he bought from the common author, and so is particeps fraudis with his author, in granting double rights contrary to law; and therefore the presumption of simulation and fraud, ought to proceed against him upon the more light evidence.
The Lords found the ground of simulation not relevant, upon taking allowance from the rebel of the price, if it was done for the maintaining of a right bona fide acquired; but found that it was sufficient to infer simulation, if the right was mala fide acquired; and that the donatar, at, or before he bought the land, knew, of the other party's right.
