Consent not presumed, when the Deed can be ascribed to another Cause.
Helen Hume v. Ld Justice Clerk.
Date: 28 June 1671 Case No. No 67.
A person having granted a bond of provision to his daughters on deathbed, payment of annualrents by the heir, being presumed to be done ex pietate, was found not to homologate the bond.
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Umquhile ——— Hume of Renton having made several provisions to his children, and amongst the rest to Helen Hume, and having recommended the same to his son, now Justice Clerk; he gave a bond to the said Helen of 2000 merks, payable upon requisition of 40 days. The said Helen pursued registration of the bond, wherein it being alleged that any requisition made was past from, by acceptance of annualrent for terms after,
The Lords assoilzied from that charge until requisition were made, and new requisition being made since, before the extracting the absolvitor, the Lords sustained the same. It was further alleged absolvitor, because the bond granted by the father was done on death-bed, and the bond granted by the defender his son was in his minority, and he had reduction depending upon the said two reasons. The pursuer replied, That the defender had homologated the bond in question by a posterior contract, whereby he had appointed a yearly payment to his mother, in satisfaction of this and the other portions. The defender duplied, That that contract was no homologation, being subscribed by him when he was minor, having curators, without their consent, and so is null by exception. The pursuer triplied, That the defender had homologated the said contract and bond in question by these deeds. First, That after majority he had paid annualrent. 2dly, That he had pursued exhibition and registration of the said contract, and thereupon had obtained the same registrated, and the decreet decerns letters to be directed at his instance thereupon. It was answered, That the payment of the annualrent, albeit voluntary, though it may exclude repetition of itself, it cannot infer homologation of the whole bond, especially the payment being made by a brother to an indigent sister. 3dly, Payment of annualrent cannot homologate a contract which is null by exception, 4thly, Any payment that was made was after the decreet of registration, and so necessary; and as to the exhibition, the pursuing for a delivery of a writ doth not import the approbation of the contents of it, but only a calling for it, because the writ belongs to the subcriber thereof, though he may quarrel the obligment therein contained; and albeit the writ was ordained to be registrated, yet there was neither charge nor execution used thereupon.
The Lords found the payment of the annualrent in manner foresaid not to import homologation, but they found that a writ subscribed by a minor without consent of his curators, as it might be ratified, so it might be homologated, and that it was de facto homologated by this decreet of registration, containing neither reservation nor protestation for quarrelling the writ registrated. It was further alleged, That the new requisition was null, bearing to proceed on a procuratory, and not bearing the procuratory produced. It was answered, The procuratory was not called for, and that the having of the writs, which the requisition mentioned, did import a power to require. 2dly, This is a dilator after a peremptor.
The Lords found the allegeance upon the nullity of the requisition receivable after the peremptor, and sustained the requisition, the pursuer producing the procuratory, which was the warrant thereof, before extract. See Redemption.
