Pactions, Declarations, &c. by Back-bond or otherwise, qualifying real Rights.
James Anderson v. Sir John Dempster of Pitlever, and Dudgeon in Inverkeithing
Date: 14 November 1702 Case No. No 45.
A party, who was in fact only a trustee, disponed a subject. Found, that the trust could not affect the purchaser's right, not being vitium reale.
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Sir John being elected commissioner for representing that burgh of Inverkeithing in the Parliament 1681, to capacitate him for that office, one Anderson, a burgess, dispones to him a tenement of land, whereon Sir John is infeft; but Anderson continues in the possession all the days of his lifetime. His relict, after his death, marries one called Dudgeon, and they enter into a transaction with Sir John Dempster, whereby, for L. 1000 Scots, he dispones the tenement over to them. Upon this, Anderson's heir raises a declarator and reduction, that the right given to Sir John was in trust to the particular end and effect above-mentioned, and therefore craves the right made by Sir John to Dudgeon to be reduced, and fall in consequence. And the Lords having ordained Sir John to be examined upon the onerous cause of his disposition, he very ingenuously depones, that he paid nothing for it, but got it on the consideration foresaid, to put him in a condition to be their Parliament man, and that no back-bond nor declaration of trust was required of him; and it being argued, That his transmission and conveyance to Dudgeon must fall in consequence, the Lords found, That Dudgeon having acquired it by an onerous title, equivalent to the value of the house, the trust in Sir John's person could not affect his right, it not being a vitium reale, and that Sir John his cedent and author's oath could not prejudge him, unless it could be qualified that Dudgeon was conscius fraudis, or knew of the trust; but they inclined to think Sir John would be liable, both in respect of his own acknowledgment that the disposition was given him on the account foresaid, and that nemo præsumitur donare vel suum perdere; and the natura negotii seemed plain that a gift was not here designed, especially being retenta possessione by the disponer all his lifetime; but the summons being rather a reduction of Dudgeon's right than a declarator of trust, they assoilzied Dudgeon from the reduction; but allowed Sir John to be further heard as to any personal conclusion of trust or damage against him for contravening the said trust.
Fol. Dic. v. 2. p. 65. Fountainhall, v. 2. p. 159.
