Conventional Irritancy in Bargains, Contracts, and Entails, if purgeable. - Irritancy relative to legatum liberationis, when purgeable.
Murray and Pearson v. Nisbet
1681.
November. Case No. No 82.
A lady restricted her annuity in favour of the heir, with this provision, that if the restricted sum should not be duly paid, she might insist for her full annuity. This irritancy was found not purgeable.
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Dame Margaret Murray, relict of the deceased——Nisbet of Craigintinnie, being infeft in an yearly annuity of L. 200 Sterling, out of the lands of Dean, during her lifetime, she and Mr William Pearson, her husband, having pursued an adjudication against Alexander Nisbet of Craigintinnie, her son; alleged for the defender, That the pursuer could not adjudge for the hail sum of L. 200 Sterling yearly, because, by a transaction, they had restricted themselves to the sum of 3000 merks. Answered, That the restriction was not simple, but qualified with this provision, That if the defender should fail in payment of the 3000 merks punctually, at two terms in the year, at least at a certain day thereafter, and at a certain place condescended upon, betwixt the sun rising and setting, the failzie being instructed by an instrument, bearing the pursuer's attendance at the respective days and terms mentioned in the agreement, that then the restriction should be null and void, and it should be leisome to the pursuer to make use of a right for the whole annuity; but so it was, the failzie was committed, as appears by the instrument. Replied, That notwithstanding the defender had failzied of punctual payment at the days specified in the agreement, yet the pursuer could not summarily adjudge for the same, unless it were first declared that the failzie was incurred; and if the pursuer were insisting in a declarator, the Lords would allow the defender to purge the failzies, by payment of the bygone annuities; and clauses irritant are odious, and not to be extended. Duplied, That the restriction was appointed with that express qualification, which is not in the ordinary case of a clause irritant, which is adjected by way of penalty, and for which there was no preceding cause, but only purely and simply a penalty; but in this case the 600 merks given down was a part of the yearly annuity due by the pursuer's contract of marriage, and was given down upon this particular consideration, that the defender should make punctual payment at the days specified in the contract; in which case the failzie being incurred, the defender cannot be allowed to purge; for albeit some times when a party is obliged to perform a deed, with a penalty adjected in case of not performance, in that case the Lords will allow a party to purge by performance; but the foresaid 600 merks given down is nota penalty, but only a restriction in case of punctual payment, otherwise that the pursuer's right should be effectual as to the hail sum.——The Lords having remitted to one of their own number to consider if the Lady's liferent was an annuity, and if the restriction was gratuitous; upon report found, That for those years for which discharges are produced, the adjudication should proceed for the same, according to the restriction; but for subsequent years, the adjudication is to proceed for the whole sums, without respect to the restriction, and that the failzie is not purgeable, and needs no declarator.
Fol. Dic. v. 1. p. 489. Sir P. Home, MS. v. 1. No 17.
