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.
Beatrix Hepburn and Thomas Skene's Creditors v. Edward Marjoribanks of Halyards
Date: 20 June 1705
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Beatrix Hepburn, relict of Mr Thomas Skene, advocate, and his Creditors, against Edward Marjoribanks of Halyards. Mr Thomas Skene having been a joint disponer, with his brother John, of the lands of Halyards to the said Edward; besides the absolute warrandice, he grants a bond apart, obliging him to purge and disburden the lands of any infeftments yet affecting them and unpurged. After this obligement, Edward gives a bond for 6000 merks to the said Mr Thomas, as if it had been borrowed money, bearing no relation neither to the price, nor to Mr Thomas's obligement to purge. After his death, his executors confirm the bygone annualrents of this 6000 merks, and his creditors adjudge the principal sum, and thereon pursue Edward for payment; who raises a declarator, to hear and see it found and declared, that the said sum contained in his bond is a remainder of the price of the lands of Halyards, and so must stand affected with Mr Thomas's obligement to purge the incumbrances whereupon he condescended; and, until they were purged, the said Edward could not be obliged to pay.
Answered for Mr Thomas Skene's Relict and Creditors,—That the bond was simply for borrowed money, without any mention or relation to the bargain or sale; and, being now, habili modo, affected by his creditors, and conveyed and transmitted in their persons, they were not concerned to purge any incumbrances; but Edward might pursue Mr Thomas's representatives for implement of his obligement to purge, as accords. And this declarator could have no effect against them, unless he had adjudged this 6000 merks for his relief in case of distress, which he has neglected to do. 2do, Esto it had been a part of the price (which is denied,) yet the said cause is now quite innovated and passed from, by his granting a bond of borrowed money without relating to the price.
Replied for Edward,—That Mr Thomas Skene's creditors can be in no better case than he would have been in; and, if he had been pursuing for this 6000 merks, it would have been a good defence, “I cannot pay you, till you, in the terms of your bond, purge the incumbrances;” for, in personalibus, the assignee is in no better condition than the cedent, except quoad modum probandi. And that this bond was a part of the price is instructed by a holograph missive letter of Mr Thomas's, acknowledging the same. And therefore he may lawfully retain till they be purged; even as a debtor, being charged on a liquid bond, may justly allege, “I am cautioner for you in the equivalent sum, and must have retention till I be relieved.”
Duplied,—This allegeance behoved to be either compensation cr retention ob causam datam causa non secuta. Compensation it could not be, for that is de liquido in liquidam, and must be commensurable; but here the one is for a liquid sum, and the other for a fact, to purge incumbrances. And it can as little be resolved into retention; for, esto it had been originally a part of the price, yet the same is plainly innovated by turning it into a bond of borrowed money, without the least relation to the price: whereby Edward has followed Mr Skene's faith that he would fulfil his obligation; otherwise he would have made the one obligement the mutual correspective cause of the other. And the missive letter is not probative though it were holograph, as it is not; for nunquam probat suam datam, and so is presumed to be on death-bed, when he could not prejudge creditors. See 26th November 1674, Panton against Stirling.
The Lords were tender in deciding this point, both the parties being in damno vitando: and, wherever the preference fell, there would be an evident loss to the other party; seeing Mr Skene's creditors must either want their money or Edward Marjoribanks must pay a part of the lands of Halyards twice. Therefore, before determining, they named some of their number to try a settlement betwixt the parties.
