Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

William Lawrie of Blackwood, and Mr John Drummond,
v.
Sir John Drummond of Logie Almond

Date: 17 January 1676

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In a reduction, at the instance of Blackwood, who had comprised the lands of Scottistoun, which were disponed to Sir John by Sir Robert Drummond of Meidhope, upon the reason of deathbed,—it being alleged for Sir John, that the disposition was made for onerous and adequate causes of the value of the lands; there being a count and reckoning, and Sir John having condescended upon many debts to him by Sir Robert, and the relief of many other debts, to which he was obliged:—

It was alleged for Blackwood and Mr John Drummond, to whose behoof the comprising was led, That there ought to be defalked the sum of three thousand merks, wherein Sir John was debtor to Meidhope, by a special provision in the disposition of the lands of Meidhope, whereby, besides all the debts therein enumerated, which he was to undertake, he became obliged to pay three thousand merks to any person to whom Sir Robert should appoint, or legate the same during his lifetime; and so intus habet, and cannot crave that all sums should be allowed to him, but with defalcation of that debt.

It was answered for Sir John, That his obligement for that three thousand merks was conditional; in case the lands of Meidhope were freed from all burdens and incumbrances, in which case he was only liable: but so it is, that the whole estate was affected, at the instance of one Logan, with a comprising against Sir Robert, as cautioner for Hamiltoun of Binny, the legal whereof was expired before Sir Robert's death: as likewise there was an infeftment of annualrent, for which infeftment was given out of his estate, for another cautionary, wherewith Meidhope's estate was burdened, and never relieved thereof during Sir Robert's lifetime; so that Sir John was forced to take order with the annualrenter, and compriser, and upon his great charges and expenses to purchase these rights, and redeem the lands, which did far exceed the foresaid sum of three thousand merks; and, therefore, he was not obliged for the said sum, for which he was only bound conditionally, as said is.

It was replied, That Sir John acquiring these rights, having now the estate of Meidhope disburdened, and having disponed these rights, and thereby affected the principal lands, for whom Sir Robert was only cautioner, and thereby got relief of the cautionary; and having incapacitated the heirs of Sir Robert, or his creditors or legators, to pursue for their relief, and as he is now liable for the said three thousand merks, either to the creditors or legators, who shall be found to have best right:

The Lords did find Sir John liable for the said debt, upon this reason, That he was not able to assign the right of comprising and annualrents which he had purchased, without allowing to him the charges and expenses he had been at in purchasing the same: Which seemed hard, seeing the condition of his obligement was not fulfilled by Sir Robert himself; and there was a necessity for him to acquire these rights, and to seek his relief, the heir or creditors never having interposed or desired to satisfy the charges he had been at; so that, in reason, his just disbursements ought to have been deduced.

Page 529.