Scottish Court of Session Decisions

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

Sir David Carmichell of Balmudie
v.
Mr John Dempster of Pitliver

Date: 23 November 1676

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Sir David, as assignee by his son David Carmichell, to a bond granted to him by Pitliver, for the sum of eighteen thousand merks, having charged for payment, upon a bill of suspension presented by Pitliver, the cause was ordained to be discussed upon the bill. The first reason was, That the assignation was an undelivered evident, during David the cedent's lifetime, but was deposited upon certain conditions; and albeit it had been delivered, it could give no right to Sir David, because it was subscribed upon deathbed; and the bond, being heritable, secluding executors, did fall to the heir, and could not be assigned upon deathbed to his prejudice; which was offered to be proven by the writer and witnesses inserted. The second reason was, that the bond charged upon being of the date of the contract of marriage, and in contemplation thereof, whereby the lands of Balbougie and Luthrie, which fell to Euphemia Dempster, as heir to her father and goodsire, as likewise, Pitliver having right to the sum of twenty thousand pounds, to which the foresaid Euphemia would be liable, as heir foresaid, it was agreed that the said Euphemia, and the heirs of the marriage, should have the undoubted right of the lands of Luthrie, free of all debts; and besides, Pitliver should pay in tocher the sum of eighteen thousand merks, for which he gave his bond: and, on the other part, the said David was to dispone to Pitliver the lands of Balbougie, and he, and his father Sir David, were obliged to cause the said Euphemia, in case she survived the husband, and the heirs of the marriage, at their majority, to ratify the disposition of Balbougie, and to liberate him of all debts that could affect the same; and the said David being now dead, and there being an heir of the marriage, who is a young child, Sir David cannot charge for payment of this sum, until he cause serve the said child heir to his father, and cause him ratify the said disposition, the sum charged for being the price of the lands: especially seeing, if the heir of the marriage should die minor, and the heirs of tailyie to the son should succeed to David's estate, they might plead that they were not liable to the warrandice; and no relief could be had of Sir David, who is a naked liferenter, and might die before the young child could attain to be major.

It was answered to the first, That the assignation being now in Sir David's possession, could not be taken away as an undelivered evident but by his oath or writ: and, as being subscribed on deathbed, it could not be quarrelled, but by the heir intenting a reduction; which can never be done, Sir David being served his tutor, who will never authorise him; so that it is jus tertii to the debtor to pay to Sir David, who was liable, as tutor, to count to the pupil.

The Lords, as to the first reason, found, That the subscribing on deathbed, and not delivering, was only probable by Sir David's oath; but ordained the writer and witnesses should be present when he deponed upon all the interrogatories put to him, for which they granted diligence. As to the second reason, having compared the contract of marriage and bond, and finding them to be of one date, and that truly it was granted in contemplation of the lands of Balbougie; as likewise, finding that the time of payment in the bond was not delayed until the disposition should be ratified by the heirs of the marriage, or until they be majors, or served heirs; Therefore they decerned the said sum to be paid to Sir David, in case it were not proven that his assignation was on deathbed: but likewise finding, that the said lands might be liable to all the said Euphemia's father's debts, and goodsire's, and so might be evicted by the creditors; against which he could have no relief, for the reasons foresaid, but against the liferenter; They ordained that Pitliver should condescend upon such creditors as might affect the lands by diligence; and that the whole sum due by the bond charged upon should be paid to those creditors at the sight of Pitliver; whereby the land might be disburdened, and he secured in the right thereof from all supervenient dangers.

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