Where a factor has paid Annualrent for a course of Years altho' none stipulated.
Hepburn of Beinstoun v. Laird of Congilton
Date: 17 November 1671 Case No. No 266.
It being held that the use of paying annualrent, where none has been stipulated, constitutes a right to demand it in future, it was found that where a mother acting for her son paid such annualrent, a mandate was to be presumed and he was bound for the future.
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Hepburn of Beinstoun having married Congilton's sister, was provided by his contract of marriage to 4000 merks of tocher, and Congilton, who is obliged therefor, by a fall from his horse became weak, and for 20 years kept his chamber; during all which time, his mother meddled with his rents, and paid Beinstoun the annualrent of his tocher, till the year 1662. And now Beinstoun pursues Congilton's son and heir for payment of the annualrent since the year 1662, who alleged, Absolvitor from the annualrent, because the contract of marriage bears none, et usuræ non debentur nisi ex pacto. The pursuer replied, That use of payment of annualrent constitutes annualrent, so that Congilton's mother having paid annualrent till the year 1662, it was due thereafter. It was answered, That use of payment of annualrent by the creditor himself may constitute the same thereafter; but payment thereof by his mother cannot constitute the same, unless her warrant were proved, which neither can be proved nor presumed, Congilton being weak, and incapable by his fall; and as his mother's obligation to pay it could not oblige him, much less her use of payment in favour of her daughter, without her son's warrant. It was answered, Albeit the obligation or payment of a third party could not constitute annualrent; yet where it was paid by a party who had a presumed warrant as a factor or servant, their payment was sufficient, and their warrant presumed, unless the contrary were proved; much more payment by a mother who meddled with her son's whole estate, and paid the same by her son's means, and not by her own, which the Lords found relevant, and sustained the annualrent. It was also alleged, That the defender, in his father's life, paid a year's annualrent. But the Lords decided upon the first ground only.
Fol. Dic. v. 2. p. 158. Stair, v. 2. p. 2.
*** Gosford's report of this case is No 9. p. 483, voce Annualrent.
