Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION 1976.
Anent the Exception of Homologation
1676.
November.
Click here to view a pdf copy of this documet : PDF Copy
The Lords have oft laid weight upon this exception,—You cannot be heard, because you have homologated my right by such and such illative and consequential deeds. See Stair's System, Tit. 10. of Conventional Obligations, § 11, folio 101. See the case between Sir Andrew Ramsay, and Mr David Thoirs. See 15th June, 1678, Louthians. Yet now they require that the deeds of homologation be very express and positive ratifications, free from all error or mistake before they make them bind. As for instance, Seius has an undoubted preferable right to the lands of; Titius has a base infeftment out of the same lands; Seius not considering the validity or invalidity of the two rights, if in a competition, he pays an year's annualrent to Titius, who has the base infeftment, this acknowledgment and payment will not hinder Seius, being better informed, to reduce that base infeftment, and totally seclude it; only he will never be heard to repeat what annualrents he paid; for bona fide solutum nequit condici, et suberat causa qucedam. Vide supra, February, 1673, No. 385. [Sir James Ramsay against Robertsone.] Yet a wife or a minor ratifying deeds done by them in minority, or when clad with husbands, are firmly bound thereby. See my Index of Dury's Practicks, verbo Minors, numero 62, pen. July, 1630, Johnston; and 11th January, 1639, which last citation I cannot find. Vide infra, June, 1677, No. 581. [Dicksone against Short.]
