Where the cause of granting is expressed, that must be the rule.
Dickson v. Dickson
Date: 5 December 1671 Case No. No 164.
The maxim debitor non pręsumitur donare was not applied to make a posterior bond, bearing for love and favour, in favour of a brother's son, to be in satisfaction of a former bond to that brother.
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John Dickson, by his contract of marriage, obliges him to pay to Andrew Dickson, his brother, and his heirs, 600 merks, so soon as the said John should happen to have heirs of his body; and likewise obliges him to repair some houses for his brother; and after the said Andrew his death, he grants a second bond to John Dickson, eldest son to the said Andrew, being pupil, bearing for love arid favour, and for bettering the said John his patrimony, obliging him to pay to the said John 600 merks at his death; providing always, that if he had no children at his death, the bond should be void. The said John, granter of these bonds, pursues now a declarator that both of these bonds are granted for one cause, seeing the second is granted to John Dickson, who is apparent heir to Andrew, to whom the first is granted, the sum the same, and the condition the same, neither being payable if John had no children, and both being payable if he had children, et debitor non præsumitur donare. It was answered, That albeit debitor non præsumitur donare, yet where expressly he gifts for love and favour only, there is no place for presumption, quæ cedit veritati; but here the second bond is an express donation for love and favour, and bears for bettering of the pupil's patrimony, and without any mention or relation to the former bond.
The Lords found the bonds distinct, and assoilzied from the declarator; in which declarator there was also a member craving that a ticket granted by Andrew, bearing that he should bear the half of the expenses of the reparation, though not holograph, should be proved that the subscription was truly Andrew's hand writ, comparatione literarum, or by witnesses, being between two brethren in re modica, not much exceeding an hundred pounds. The Lords refused to admit any such probation. See Writ.
Fol. Dic. v. 2. p. 146. Stair, v. 2. p. 17.*** Gosford reports this case:
In a declarator pursued at the said John Dickson's instance against his nephew, to hear and see it found and declared, that a bond granted by the pursuer to the defender for 600 merks, was only for that same sum contained in his father's contract of marriage, wherein the pursuer was obliged to pay the like sum of 600 merks to the defender's father Andrew Dickson, who was brother to the pursuer; in respect that both in the contract and bond the pursuer was liable in payment, so soon as he should have heirs of his own body; and that he being debtor in the contract of marriage to the father, and having granted a new bond to the son upon these same terms and conditions, he ought to be liable but in one single payment, quia debitor non præsumitur donare; and it could not be imagined, that having children of his own, that he should bestow so much upon his brother and his son for no onerous cause, especially being a man of no great fortune.
The Lords did find, that both the sums contained in the two bonds were due, seeing the last was not in satisfaction of the first, but made to the son for his better provision. But thereafter, it being alleged, That the last bond was delivered to the mother, to be deposited in her hands upon that condition; that the first bond should be delivered back upon payment of the last; the Lords before answer did ordain the mother to be examined.
