Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
James Sinclair v. Murray of Clairden
Date: 10 February 1702
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Murray of Clairden having married the daughter of Murray of Pennyland, she, in her contract of marriage, dispones her father's lands to Clairden, her husband; and he, in contemplation thereof, undertakes the payment of some of her father's debts, and particularly of 2000 merks to Maciver of Lickmellum. James Sinclair, having right by progress to these debts, pursues Clairden for payment. His defence was,—My engagement was mutual, et intuitu of a right from my wife to her father's estate of Pennyland; but, ita est, I find now that she had no valid nor sufficient right; so that I have raised reduction of the contract ob causam dali causa non secata; for, I having undertaken the debt in contemplation of the estate, and that failing, my obligeaient cadit in causam; and the law says,—Sive ab initio sine causa promissum est, sive fuit causa promittendi, sed quœ facta vel secuta non est, dicendum est condictioni locum fore: and Stair, ¿it. Conventional Obligations, observes, That the failure of the mutual cause of a contract operates even against an assignee for an onerous cause to exclude him.
Answered,—Your obligation to pay is simple and absolute, and clogged with no condition or quality of the validity or efficacy of your wife's right, and so you took your hazard; neither is there any thing condescended on, to instruct either the defect of the right or the preferableness of any other thereto; and it was easy for him to abstract and conceal the rights. And, in a decision in the late times, betwixt the Earl of Lauderdale and the Duchess, the Lords found the mutual cause ceased where there was a legal bar and impediment to the performance, by an expired apprising.
The Lords considered who was in possession of the lands; and, finding they were liferented, they repelled Clairden's defence and reason of reduction: and found him liable, unless he instructed some distress, or preferable right, totally exclusive of his; or that the superior had obtained certification against then-writs; or that there was some plain nullity or defect in his wife's right; in any of which cases they would allow him to be farther heard.
It was also alleged,—That James Sinclair's author being no party-contractor, he could not found on this clause. But the Lords found, That acquirere possumus etiam per alios; et, ubi id agitur, the parties-contractors can neither alter, discharge, nor innovate the same.
