Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Sir Alexander Home
v.
Mr Patrick Home

Date: 17 December 1678

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Umquhile Lord Rentoun, Justice-Clerk, upon consideration of the indisposition and weakness of his eldest son, Sir Alexander Hume, granted a tack to his second son, Mr Patrick, of his whole estate, for payment of an annuity to Sir Alexander for his aliment, and the rest of the rents to the creditors: Whereupon there being a connt and reckoning betwixt Sir Alexander and Mr Patrick, Mr Patrick proponed a total defence,—That he had the sole right to the estate of Rentoun, by a disposition granted, by Sir Alexander to Frank Stuart, of the lordship of Coldinghame, comprehending the barony of Rentoun; by virtue of an apprising of the said barony of Coldinghame, comprehending as said is; and for all other right, title, and interest the said Sir Alexander had to the said barony of Coldinghame, comprehending the said lands of Rentoun and others; or to any part thereof, in any manner of way: and to which disposition the said Frank Stuart had made the said Mr Patrick Hume his assignee; whereby Sir Alexander was excluded from any interest he had in the lands of Rentoun, any manner of way.

Sir Alexander having raised reduction and declarator, that the foresaid disposition granted by him, could not be extended to the property of his own estate of Rentoun, but only in so far as it was comprehended as a part of the barony of Coldinghame, which was apprised upon a bond granted by the apparent heir of Coldinghame,—to the effect, that, without entering heir, he might attain his predecessor's estate; which apprising was deduced in the name of Sir Alexander, his nearest cousin to his own behoof, and he dying, the said Frank Stuart became nearest apparent heir; and therefore Sir Alexander, according to his trust, did dispone the apprising to Frank. And as to the clause, “for all other right,” it is no part of the dispositive clause, but only in the procuratory of resignation; and must either be the error or fraud of the framer of the disposition, that the said clause was adjected, omitting the words that rationally should have followed, viz. “by virtue of the said apprising,” which at length is narrated, and only disponed.

The Lords, before answer, having ordained Frank Stuart, the writer, and witnesses inserted to be examined, how this disposition was procured, Frank deponed, That it was delivered to him by John Bannatine, one of the witnesses inserted; and that there was no antecedent communing about it: and Bannatine deponed, That a mean servant of the Justice-Clerk gave him the disposition as now it is subscribed, and desired him to carry it to Sir Alexander, which he did; and Sir Alexander subscribed the same, and gave it to him to be delivered to Frank Stuart, which he did accordingly; and that nothing was expressed by either party what their intention or meaning was; neither yet what was meant by the assignation by Frank Stuart to Mr Patrick.

The Lords found, That the clause “for all other right,” &c. not being in the dispositive clause; and that it did not appear who was the framer of the disposition, or by whose order, (the writer thereof, who was the other witness, being dead;) and that Mr Patrick, acting by a tack, acknowledged Sir Alexander's right of property: that therefore the disposition could not be extended to the property of the estate of Rentoun, but only to the superiority, or the feu-duty thereof; as having been holden of the Abbacy of Coldinghame, erected in a temporal lordship to Frank Stuart's predecessors; and comprehended in the said lordship as a part of the vassalage thereof, and as no part of the property.

Vol. II, Page 658.