Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
George Home of Kymergham v. The Earl of Home
Date: 12 January 1694
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The Lords advised George Home of Kymergham's cause against the Earl of Home, wherein the Lords adhered to their former interlocutor, 16th of February 1692, finding that the posterior articles were an innovation of the first contract; and though the Earl was at first personally bound for payment of the annuity of £100 sterling, yet that he was, by the subsequent agreement, only bound to grant a real right out of the lands of Ayton; though novatio non prœsumitur. But, in regard he had not as yet given that infeftment, they found the Earl personally liable for the bygones, since the date of the contract in 1683, and in time coming, until he offer the said real security; and that, in regard he has, by his oath, acknowledged that he has possessed these lands, worth 5000 merks per annum, and that the rights condescended on neither excluded himself from the possession, nor could have debarred Kymergham, if he had been infeft, seeing they are not real burdens affecting the lands of Ayton; and though there was a provision in the tailyie, burdening the heir with all the debts, yet that did not make it real. And as for Muirie's bond, it was only conditionally conceived, and made payable in a year after Ayton, the granter's death, if so be he had wanted heirs of his own body: but ita est his daughter succeeded, was served heir, and possessed; and so the bond was extinct; not being like a tailyie, where the clause quibus deficientibus has tractum temporis successivum, so that, quandocunque the heir fails, the next member of the tailyied succession takes place. Some moved, that the interlocutor, making the Earl liable for bygones, should only begin from the time that Kymergham performed his part of the articles, by delivering up the papers to my Lord; but they found there was neither mora nor culpa on Kymergham's part, and, esto my Lord had been lesed through the want of them, yet sibi imputet since he had not required them.
