Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due ex pacto.
Nairn v. Lindsay
Date: 17 July 1696 Case No. No 17.
In a bond of provision, the term at which annualrent should commence, not being fixed, but to be determined afterwards by the father; he having died without fixing it, it was found that the children being alimented during the lives of their father and mother, anuualrent could not begin till after the death of both.
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Mr Thomas Nairn of Craigton against Lindsay of Dowhill; whose father, in the son's contract, had reserved a faculty to burden the lands with 20,000 merks for his younger children's provisions; and having accordingly exerted this power, the question arose anent the term of payment, and a quo tempore it should bear annualrent:—Craigton contended, Seeing it was not expressed, it became statim due; for in all pure obligations, which are neither ad diem, nor conditional, if they bear no commencement, (as in some tacks) pro præsenti tempore præsumitur. § 2. Instit. de verbor. obligat. 4th December 1629, Oliphant contra Peibles, (Durie, p. 474. See Presumption.)—On the other hand, it was alleged, That annualrent was provided in children's bonds of provision instead of aliment; so, where they are alimented, they ought to have no annualrent, it being unreasonable to give them both; and, ita est, the father and mother alimented the younger children during their lifetime; and the term not being fixed, neither in the contract nor bond of provision, but left as the father should afterwards determine, which he never did, the Lords, tanquam boni viri, came in his place to supply it.——And having balanced all the presumptions on both sides, they found no annualrent due for their portions till after both the father and mother's death. That it did not commence during the father's life, the Lords were unanimous: But not in the second; for some were of opinion, that his death was the true term of payment, after which annualrent became due; but it was decided at supra.
Fol. Dic. v. 1. p. 37. Fountainhall, v. 1. p. 729.
