Effect of Prestations in Mutual Contracts as relative to Assignees.
Alexander Alexander v. Lord Saltoun
Date: 20 June 1671 Case No. No 59.
A donatar of bastardy pursuing for the price of lands sold by the defunct, was found obliged to implement the mutual cause.
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The Earl of Haddington having obtained a gift of bastardy, and ultimus hæeres, of umquhile William Gray, Provost of Aberdeen, did assign the same to Alexander Alexander, with a process thereupon, against the Lord Saltoun, for payment of 5000 merks due by him by bond, to the said umquhile William Gray. The defender alleged, That this bond being granted for the price of land bought by him for the bastard, and of the same date with the contract of alienation thereof; there was a back-bond also of the same date, by which the said William Gray was not only obliged in warrandice, but also to procure himself infeft, holden of the Earl of Mar, to purge an inhibition at the instance of —— Ramsay, and to procure a right of an apprising, at the instance of the Lord Newbyth. The pursuer answered, That the King or his donatar was not obliged to fulfil these obligements of the bastard, which were not liquid nor special. It was answered, That the gift of bastardy, or ultimus hæres, not falling to the King by forfeiture, or any delinquence, but by deficiency of the bastard's heir, the donatar was in no better case, as to the fulfilling of these obligements, than the bastard or his heir would be, if they were pursuing upon the bond, who could not seek payment till the obligements in the alienation, or back-bond, which were the causes of this bond, were fulfilled.
Which the Lords found relevant, as to the special obligements of obtaining infeftment, and purging the inhibition and apprising, but not as to the general obligement of warrandice, wherein no distress was alleged.
Fol. Dic. v. 1. p. 598. Stair, v. 1. p. 735.*** Gosford reports this case:
—— as having right by assignation from the Earl of Haddington, who had a gift of ultimus hæres and bastardy of William Gray, Bailie of Aberdeen, and thereby to a bond granted to the said William by the Lord Saltoun, for the sum of , did pursue for payment of the sum contained in the bond. It was alleged for the defender that he ought to have compensation or retention of that sum, because the bond being granted in contemplation of a disposition of lands, which the said William was obliged to warrant, and to purge all real burdens, the said lands were affected with infeftments and inhibitions equivalent to the said sum. It was replied, That the bond pursued upon was for borrowed money, and could not be compensated upon any obligement of warrandice which was not liquid, neither could that warrandice meet the King's donatar, or pursuer, who had right from him, where the debt was neither constituted against the defunct bastard, nor made liquid. The Lords did sustain the defence, notwithstanding of the reply; and found, that the bond being of that same date with the disposition of the land, and written and subscribed by the same writer and witnesses, it was a part of the contract of alienation, unless they would ascribe the same to another cause, and that the bond being granted for the price of land, with an obligement of warrandice, the King's donatar or any having right from him were liable in quantum the gift might extend to for payment of those burdens which the bastard was obliged to purge, or otherwise that the defender have retention of the sums contained in the bond, seeing that the King or his donatar of ultimus hæres are liable to the defunct's debts, to whom the King succeeds as ultimus hæres, as well as any other heirs who succeed to their predccessors, and in that only there is a difference betwixt them, that the King or his donator are only liable secundum vires, or the value of the estate.
