Levity, without interdiction or fraudulent inducements, not sufficient to annul a gratuitous deed.
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Gilbert Grierson pursues a reduction of several bonds granted by him to umquhile Telfer of Haircleugh his uncle, on these reasons, 1mo, That the pursuer was known to the defunct, who was his uncle, to be a facile, lavish, and weak person, and yet he procured from him the bonds in question, without an onerous cause, and within three days thereafter procured from him a bond of interdiction to himself, upon account of his facility and weakness. 2do, It was offered to be proved, that these bonds were granted of the same date with the bond of interdiction, or after the same; by which interdiction the defunct became as curator to a weak or prodigal person; after which he could do no deed, not being authorised with the consent of his interdictor, who therefore could not authorise him to his own behoof, but was in pessimo dolo to take bonds from him gratis, yea even to lend him money to squander it away. 3tio, The bonds were satisfied by intromission with the pursuer's moveables and rents, whereof though he took discharge, yet after the interdiction he could not do it. —The defender answered to the first. That it is not relevant, that a person is weak or lavish, to reduce even his donations, because he is dominus rei suæ; but the law hath appointed a special remedy to secure persons for the future, by interdiction; nor doth it import any fraud or circumvention, to accept a donation from a lavish person, unless fraudulent inducements were condescended upon and proved. To the second, Though the bonds in question were of the date of the bond of interdiction, non relevat to annul them, because the interdiction cannot hinder the interdictor to lend money to the interdicted, wherein the interdictor's consent is implied. 2do, This interdiction can have no force till it was published, for it is the authority of the Judge only that can bind up a party from acting on his own bond, or not acting, relating to no interest of the interdictor, but of the interdicted, who thereby is both debtor and creditor, and cannot be bound to himself. As to the third, Interdictions are only allowed hæreditatem salvam fore, and therefore are never extended to any moveable right; and so the discharge of his moveables is valid, though it had been after the publication of interdiction; but the date of a bond of interdiction can import nothing as to deeds posterior to the date, because such bonds are ordinarily subscribed by the interdicted, and kept by themselves till publication.
The Lords repelled the first reason, and found that levity, without interdiction or fraudulent inducements, could annul no deed, though gratuitous; but found the second reason relevant, That these bonds were at, or after the interdiction, being delivered to the interdictor, though it was not published; so that the interdictor accepting, could take no right from the interdicted, but upon onerous causes, and due application; but found that the interdiction in no case could reach the moveables, therefore sustained his discharge of the moveables and rents. See Interdiction.
