Conventional Irritancy in Bargains, Contracts, and Entails, if purgeable. - Irritancy relative to legatum liberationis, when purgeable.
The Lady Cultequhey v. The Laird of Abercairnie
Date: 10 December 1672 Case No. No 80.
A lady granted a renunciation of her liferent right in favour of her son, upon his becoming bound to relieve her of her debts betwixt and a certain day. By a posterior bond it was declared, that if the conditon were not performed at the day, the renunciation should be null ipso facto. - The Lords found irritancies of this nature, not being penal, could not be purged.
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The Lady Cultuquhey having granted a renunciation of her liferent-right in favour of her son, his heirs and assignees, upon certain conditions, for relieving of her debts betwixt and such a day; and by a posterior bond it is declared, that if the same were not performed at the day, the renunciation should be null, ipso facto, as if it had never been made: The Lady pursues a declarator of the nullity, her son to whom it was granted being dead without issue. Compearance is made for the donatar of her son's ward, who alleged that the renunciation being made to her son, his heirs and assignees, he as donatar to the ward of the lands renounced, was a legal assignee; and as the son in his own time, if he had been thus pursued, might have offered to purge the irritancy by present performance, so may and doth the donatar offer to purge, as is ordinary in all clauses irritant, especially where it bears not 'to be void without declarator.' It was answered, That clauses irritant in commissoriis, where they are penal, and give the party more than their just interest, may be purged; but when a party gratuitously grants any right without a cause onerous, upon conditions, and a clause irritant, in case of not performance, such clauses cannot be purged; albeit clauses irritant in reversions, or back tacks, which are penal, and whereby the wadsetter gets more than his just interest, may be purged.
The Lords repelled the defence, and found irritancies of this nature, not being penal, could not be purged.
Fol. Dic. v. 1. p. 489. Stair, v. 2. p. 130.*** Gosford reports this case:
In an action of declarator of the nullity of a contract passed and subscribed betwixt the Lady and her son, whereby she disponed to him her whole liferent lands, upon express condition, that he should pay the debt, and pay L. 2000 to her daughters, wherein there is a clause irritant, that in case of not performance, the disposition should be void and null; it was alleged for Abercairney, who was donatar to the ward of the fiar, who had succeeded to his deceased brother, who was party contractor, that he having now right to the lands disponed by the Lady, whereof she was denuded by the said contract, there could be no declarator upon the clause irritant, because he was willing to purge the same and perform all deeds to which her son was obliged, in whose place the donatar now succeeds. It was replied, That the irritant clause being committed during her son's lifetime, who never performed, and the disposition of her liferent being to her own son, flowing ex pietate materna, and out of affection to him, the donatar was not in the same case, and could not crave the benefit to be admitted to purge, as her son must have done.——The Lords did sustain the declarator, and found that the donatar could not be admitted to purge the clause irritant, which was long before committed, and thereby prejudge the Lady and her children of that which she only intended for their benefit, out of that affection that she carried to her own children.
