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.
William Livingston v. James Lindsay
Date: 15 June 1709
Click here to view a pdf copy of this documet : PDF Copy
William Livingston dispones a tenement at the back of the Canongate, which he had acquired from the Lord Balmerino, to Sir Patrick Aikenhead, bearing, that he had borrowed from him ¿£1000 Scots; therefore, in security and payment of that sum, and any farther sums he should happen to advance him afterwards, he dispones the said brewhouse heritably and irredeemably; which right Sir Patrick makes over to James Lindsay. Livingston raises a declarator, That it was only a redeemable right of its own nature, though the word irredeemably was by mistake inserted therein; for Sir Patrick never advanced more than the first £1000 Scots, which was far from being the adequate price of the house, which was worth more than 4000 merks; and these words explain the meaning of parties,— “That it was only for his security and payment;” which clause were nonsense if it had been designed to be an irredeemable right.
Answered,—That, esto the £1000 were below the value, yet he has bestowed more than 2000 merks in reparations and brewing looms, which, with the first sum advanced, does far exceed the true value of the property; and Livingston, who is now irresponsal, designs to inveigle him in a tedious count and reckoning, he never being able to pay him the true sums he has on it, esto it were redeemable, as it is not.
The Lords thought the case dubious; yet, by plurality, found that clause of its being granted in security and payment, overruled the rest of the narrative, and made it redeemable; but so as Lindsay should not be obliged to denude till he got payment of his meliorations wared out upon the brewhouse. If it had not related to a special sum advanced, the Lords thought it would have been irredeemable: but they proceeded, ex conjecturata voluntate et mente contrahentiunm to think no more was designed than a security.
