Contract when understood Mutual, when Conditional.
Creditors of the Laird of Mouswell v. The Lady Mouswell
Date: 23 December 1675 Case No. No 56.
A relict renouncing a part of her liferent, for maintenance of the family, by contract with the the friends, who became bound to undertake to satisfy creditors for the subsistence of the family, and yet they disposing of the estate, or suffering creditors to evict it, the Lords found the renunciation null, and that the relict had still right to the whole, even as to those friends who paid their parts, the whole debt not being paid, nor the family preserved, which was the only end of her renouncing.
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In a double poinding, raised at the instance of Tenants of the Lady's conjunctfee lands of Mouswell, it being alleged for the Lady, That she ought to be preferred as to the annuity of 1000 merks yearly, wherein she stood infeft; it was answered, That she could only seek preference for 800 merks; because, by a minute betwixt her and the friends who were creditors, she had engaged, for relief of the debts of the family, to restrict her liferent to 800 merks only. It was replied, That the minute of agreement was oppponed, bearing that she had only done the same for the standing of the family, having then a son, who was since dead; and the friends having undertaken the payment of the debt for the subsistence of the family, which is now extinct, and the estate sold, the creditors, and others who have acquired right thereto, can never crave the benefit of that restriction, which she had only granted tutorio nomine, and with personal respect to her son, who was then apparent heir of the family. It was duplied, That the creditors now in competition being great losers, and have no way of relief as to a great part of the debts, but by the said restriction, they ought to have the benefit thereof, in so far as it ought to be extended to their debts, which they had undertaken and satisfied; albeit the minute of agreement was not fully performed by others who were bound for them.—The Lords having seriously considered the minute, bearing expressly that the cause of the Lady's restriction, did find, that unless the whole obligements contained in the minute were performed, the Lady ought to be preferred to her whole annuity; and that she could not be restricted in favour of some contractors, seeing thereby the family was not preserved; and that it was but a small provision for her and several daughters, who were not otherways provided.
Fol. Dic. v. 1. p. 507. Gosford, MS. No 829. p. 523.*** Dirleton reports the same case:
In a suspension of multiplepoinding against Agnes Rome Lady Mouswell, and her children, and Douglas of Dornick, and the other Creditors of Mouswell, the said Lady desired to be preferred for an annualrent of 1000 merks yearly, wherein she was infeft; it was answered by the creditors, that she had right only to an annualrent of 800 merks yearly, having restricted herself to 800 merks, by a contract and agreement betwixt her and her friends of Mouswell. Whereto it was replied, That the restriction was personal in favours of the heir of Mouswell, and intuitu of the obligements contained in the said contract; that the friends should undertake the sums mentioned in the said contract respective, which they had not done; and albeit it was duplied, That the minute does bear a positive and absolute restriction, and renunciation of 200 merks, and that there is no provision or clause irritant in the minute, that if the obligements upon the other contractors were not fulfilled that the restriction should be void; yet the Lords preferred her for the whole annualrent, notwithstanding of the restriction foresaid; which appears to be hard, seeing some of the creditors, who did compete with the Lady, were not contractors and obliged by the said contract; and the foresaid restriction was not in favours of the creditors who were obliged by the said contract, but in favours of her son the heir; and the benefit thereof doth accrue to his creditors who had comprised; and does in effect redound to the advantage of the heir and his successors; seeing the creditors will be the more easily satisfied, the burden of the Lady's liferent being restricted, as said is; and the other creditors, who had not fulfilled their obligements, may be pursued for implement of the same; and it is a great inconsequence, that because they had not fulfilled their part, that therefore the Lady's part which was fulfilled and executed, should become void; and the pretence, that the restriction foresaid was causa data non secuta is of no weight; seing the causa was the obligement of the creditors, which they might be compelled to fulfil.
