Grissel Young and her Husband v. Adam and William Craicks
Date: 15 February 1706 Case No. No 47.
Redemption of lands was sustained several years after elapsing of the time fixed, by a back bond of reversion, for using redemption.
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In the process at the instance of Grissel Young and her Husband against Provost Craick's sons, for redeeming a house and some acres of land in Dumfries, disponed by James Young of Broomridge her father, to the defender's father in the year 1675, upon this ground, that he stood obliged by a back-bond to redispone to the disponer, upon his repaying the price;
Alleged for the defenders, that their father's back-bond was conditional in case the price were repaid betwixt and a precise term, which was so for from being performed, that ten years thereafter James Young pursued the Provost for a small remainder of the price, and for a jacobus which he alleged was promised to his wife at making the bargain; and thereby had past from the reversion, which is stricti juris. 2do, William Craick of Duchrae one of defenders being ignorant of any such back-bond, had accepted of a disposition to the house and acres from his father, and bona fide sold them to a third party; so that it is not in his power now to redispone, and the pursuer can only claim damage and interest loco facti imprestabilis.
Replied for the pursuer, that even temporary reversions of heritable rights may be pursued at any time before a declarator of extinction, though conceived by way of irritancy, if not claimed within a certain time. The reverser is Still allowed to purge before decreet; and even after a decreet of declarator of the irritancy, the Lords are in use to supersede extract for a time, within which the redemption may be made. Yea, lands were allowed to be redeemed after elapsing of the term in the back-bond; although it bore, that the reversion should be void and null without declarator, if the money was not paid within the time prefixed; July 8. 1636, Cleghorn contra Ferguson, No 41. p. 7204. February 1. 1677, Earl of Tullibardin contra Murray of Ouchtertyre, No 43. p. 7206.; such renunciations of the benefit of redemption being condemned and reprobated in law as odious, usurious and oppressive, of the nature of pacta legis cemmissoriæ. For who would seek such a back-bond, if the lands disponed were not better than the price paid; and if better, why should an indigent person be so taken advantage of, when the other has no loss by getting his money. 2do, A process for the remainder of the price was consistent with the bond of reversion, because the disposition and back-bond bore the receipt of the whole price, which might have been lost if not pursued while Provost Craick lived. And it is usual enough at the granting of redeemable as well as irredeemable rights, to promise some compliment or gratification to a wife, or other persons, for their interposing to help to make the bargain.
Duplied for the defenders, The reversion of this back-bond is not pactum legis commissoriæ, which our law allows to be purged at any time before declarator; but an obligement to pass from a sale for a competent adequate price; which is only effectual if pursued within the limited time, January 17. 1679, Beatson contra Harrower, No 44. p. 7208.
Triplied for the pursuers, The obtruded decision betwixt Beatson and Harrower doth not meet; for there a person having right from G. Beans by progress, pursued the redemption contrary to the terms of the reversion which was personal to Beans.
The Lords found the lands still redeemable in respect of the back-bond, notwithstanding that the time prefixed for the redemption was long elapsed.
