A gentleman being abroad, and having no children, two of his relations agreed privately, that if his estate was disponed to eitaer of them, the other should have a share. He disponed his estate to one of them, with power to alter. The disponee sent his son with the disposition to Denmark, where the disponer was, who recalled the former disposition, and granted a new one in favour of the son. The Lords found this transaction fraudulent.
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Umquhile Patrick Moir having right to the lands of North Spittel and South Spittel, as heir of his father's second marriage, and having gone abroad to the wars, Mr John Campbell, who married the sister-german of that marriage, and Doctor Moir, who was his brother of a former marriage, did agree betwixt themselves, that if Patrick should dispone these lands to his sister and Mr John her husband, that they should freely denude themselves in favours of the Doctor of the one of these lands; and the Doctor agreed, that if Patrick disponed the same lands to him, he should denude himself of the other of the said lands in favours of Mr John and his spouse; which agreement “both parties did swear to observe and fulfil.” Patrick did dispone the lands to the Doctor, “with power to him to alter during his life;” but thereafter, the Doctor, to elude his agreement and oath, sent his son to Patrick, who was then General-adjutant in the Danish army; and he, by a postscript, recalled the former disposition in favours of the Doctor, and dispones the same in the like terms in favours of his eldest son. Mr John pursues the Doctor to denude conform to his foresaid agreement and oath, and refers the same to his oath of verity. The defender alleged absolvitor, 1mo, Because the alleged agreement being “to denude of the right of lands,” which requireth writ to perfect the same, est locus penitentiæ, before the writ be subscribed, and either party may resile, likeas the Doctor doth resile, 2do, The case libelled holds not, for albeit the lands were once disponed to the Doctor by Patrick, yet he reserved a power “to alter during his life,” and accordingly did alter and dispone to the Doctor's son; whereby it is become factum imprestabile to the Doctor, being already denuded in favours of his son, not by his own deed, but his author's. The pursuer answered, That albeit in bargains requiring writ, there be place to resile, yet that is only re integra, and there is no more but an agreement; but here there is an oath interposed, whereby the matter is not entire, and the Doctor cannot resile sine detrimento animi; for the law of all nations holdeth oaths to be inviolable in things lawful; and that they take off any thing not essential to the deed; and therefore minors cannot revoke, when they have sworn “not to come in the contrary,” when they may be easily imposed upon and deceived; much less can majors, where no deceit can be pretended; and if any party were entrusted to acquire a right for another, and were pursued to denude upon that trust, having acquired he could not pretend place to resile, because his denuding required write seeing it proceeded ex anteriori causa, requiring no writ, viz. ‘the trust;’ and, in this agreement, there was a mutual trust, whereby the pursuer acquiesced; and did not interpose with the brother for a right, which they were liker to obtain in favours of the sister-german and her husband, than the brother ex uno latere. ‘The Lords found, that there was no place to resile in respect of the oath.’ The defender further alleged, That Patrick had denuded himself, and disponed in favours of his son, by the reservation in his first disposition to the defender, which is all one as if the first disposition had never been granted. The pursuer answered, That the second disposition was procured pessimo dolo, to evite the performance of the oath, and must be presumed to be the Doctor's deed, having sent his son to Denmark with the disposition, and therefore pro possessore habetur, qui dolo desiit possidere. The Doctor having evacuated his own right by fraud, he might denude with warrandice against the disposition to his son. It was replied, That fraud is not presumed, and the Doctor denies that he procured the alteration; but it was his brother's deed, who would not let the lands go out of the family. It was duplied, That fraud is here inferred ex evidentia facti, the Doctor having sent his son with the disposition; and it was a fraud not to tell Patrick of the mutual agreement and oath, which could have no design but to make Patrick alter his disposition.
The Lords found the reply relevant, “That the Doctor sent his son with the disposition to Denmark, and that the brother altered the same there,” to infer fraud, to evite the Doctor's oath; but if Patrick had been alive, it is like the Lords would have taken his oath how he made the alteration. See Locus Penitentiæ.
