What Effect, when there can be no Benefit by the Suit for the Purpose of interrupting the Prescription?
Thomas Somervel v. Ingleston and Captain Tennent
Date: 22 November 1687 Case No. No 385.
Female heirs of line were held to be non valentes agere, while there were heirs-male living, who were also heirs of tailzie.
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James Tennent younger of Carnes, being obliged in a minute of contract, anno 2634, with Jean Somervel, to procure himself infeft in his father John's lands, and in the conquest, and then to infeft the heirs of the marriage, whereupon he was inhibited anno 1637, the father disponed a part of his lands to his said son James, and to his heirs-male of the marriage; which failing, to other heirs-male; and these in the last termination having failed, there was a gift of ultimus hæres obtained, and a declarator pursued at the instance of the donatar.
Alleged for the heir of line female; That she had right by the contract 1634.
Answered; The clause in the contract, being but a destination, might be altered by the father, who was fiar, notwithstanding the inhibition, which fell with the ground thereof.
Replied; The clause, by the conception of it, is an express obligement, not a destination in the terms of ‘which failing,’ &c. 2do, Though it were a destination, it cannot be evacuated by another destination to heirs-male, more [than] destinations in first contracts can be altered by destinations in second contracts; and although such clauses did not hinder parents to spend or dispone for onerous causes, or to strangers, yet they may be effectual to prevent any contrary deeds in favours of heirs, in respect of whom the prior clauses are of the nature of obligements; and the tailzie 1637 doth not extinguish the obligement in favours of heirs of the marriage by the first minute, which is prestable by the heirs of tailzie, and by the donatar quoad valorem.
2do, It was alleged for the donatar; That the minute was prescribed, not being pursued on within 40 years.
Answered; While there were heirs-male living, who were also heirs of tailzie, the female heirs of line were non valentes agere.
The Lords, considering that the provision in the minute of contract 1634 was somewhat more than a destination, ordained the point to be heard in presence; and, in the mean time, recommended a settlement to the parties; but sustained the interruption of the prescription.
1687. December.—Upon the new hearing, a point occurred, which made them wave the import of the foresaid clause in the minute, viz. That the tailzie 1637 was not of these lands contained in the minute.
Fol. Dic. v. 2. p. 125. Harcarse, (Contracts of Marriage) No 388. p. 201.
