Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. VII.
If presumed to comprehend debts in which the granter is a substitute only.
Innes v. Innes
Date: 27 January 1670 Case No. No 26.
A general discharge of all bonds of provision, was found not to include a provision by substitution, of which there was only an apparency, et de quo non fuit cogitatum.
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In the action upon the bond of prevision made by Patrick Innes to Robert his son, 24th July 1669, voce Provision to Heirs and Children; wherein there was a substitution, that failing of him and the heirs of his own body, the same should fall to Janet and Margaret Inneses, the Lords having found, That albeit Janet deceased before Robert, that her heirs should have right; it was of new alleged, That the heirs of Janet could have no right as being heirs to her; because she dying before Robert, had no right in her person, and consequently her heirs could have no right, nor be infeft in the annualrent granted by the Earl of Errol who was debtor, who could not pay that sum but by a valid renunciation of a person that could be infeft. The Lords found that the allegeance was not competent hoc loco; but reserved the same to be considered when the Earl of Errol should be decerned to pay the money contained in the real infeftment; yet, the question being rightly considered, it seems there will be a difficulty, seeing Janet was never infeft herself; and a general service, although it gave right to the substitution, which was a right of apparency, yet they could not be specially served nor infeft as heirs to Janet; neither could they be specially served heirs to Robert, who was never infeft, and had only right by a bond of provision; and therefore, it seems the renunciation behoved to be granted by the heir and eldest son of the father, who could only be specially infeft in that annualrent. But this was reserved to be considered as said is. Thereafter, in this process, compearance was made for Margaret, another sister who survived Robert, and craved the benefit of the substitution for her part and proportion. It was alleged for the tutrix and the heir, That she could have no part; because, by her contract of marriage, she discharged all that she could crave by the decease of her father, and particularly all bonds of provision made to her, which must comprehend this bond of provision granted to Robert, to which she was provided by a substitution, failing of him and his heirs. The Lords repelled the defence, and sustained her interest, notwithstanding that the discharge in the contract of marriage was so general; because she having other bonds of provision made to herself, and the time of the discharge, nor 15 years thereafter, she having no right in her person by virtue of the substitution but a naked right of apparency de quo nan fuit cogitatum, there being no mention thereof, or any assignation thereto, in case the right should fall to her by the death of Robert; and the discharge itself being granted only to the tutrix for her security, who could noways be liable to compt for that sum by virtue of the substitution; they found that it could not be included in the discharge of all bonds of provision.
Fol. Dic. v. 1. p. 343. Gosford, MS. No 234. p. 94.
