Conventional Irritancy in Bargains, Contracts, and Entails, if purgeable. - Irritancy relative to legatum liberationis, when purgeable.
Duchess of Hamilton v. Fairholm
Date: 21 December 1709 Case No. No 87.
An agreement for a sum, was to be restricted, if a prior agreement for a less sum could be produced by a certain time. Restricted although the prior agreement not produced within the time.
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By a mutual contract past betwixt the said Duchess and Mr William Kintore of Kinglass, the Duchess gives him the liberty of a cart-way through her lands of Borrowstounness, for carrying his coals to the harbour; for which he obliges himself to infeft her in an annuity of L. 100 Scots yearly, to be uplifted out of his lands of Kinglass, with this quality, that if he can produce any prior agreement containing a less sum than the said L. 100, then the Duchess declared she would restrict herself thereto; and Lammas 1701 was the term allowed him for searching and finding out the same. Kintore failing in payment, the Duchess. on her infeftment, pursues a poinding of the ground before the Sheriff of Linlithgow, and obtains a decreet. Thomas Fairholm coming now to be heritor of Kinglas, suspends on this grounds, 1mo, That there was nothing produced for the title but a naked sasine, which is no more but the assertion of a notary, and not probative without the contract, which is the notary's warrant. 2do, Lammas 1701 was allowed for producing any prior agreement restricting it to less, and yet by anticipation you take your decreet in July before. 3tio, You not only conclude a poinding of the ground, but likewise a personal conclusion against the tenants for payment. Answered to the first, That a sasine alone was good enough against tenants who had no right, and it is presumed there were two doubles of the contract, whereof their master would have one in his custody. To the second, It is true he is indulged till Lammas 1601 to produce the prior agreement, if any was; but this clause was noways suspensive of the execution; for the Duchess had a present right to the L. 100 yearly, and immediate access, ay till a restriction were shewn, which is not done to this hour. To the third, The tenants being personally apprehended might be decerned as well as the ground to be poinded. The Lords repelled the first two reasons of suspension; but in regard it does not appear what the tenants were then owing, assoilzied them from the personal conclusion, but decerned in the poinding of the ground. The Lords thought, albeit the time limited for producing any instruction was elapsed, yet the failzie was still purgeable, and if they had any such paper, it would be yet receivable, the taking advantage of those irritancies being odious in law.
Fol. Dic. v. 1. p. 491. Fountainhall, v. 2. p. 544.
