Rollo of Powhouse v. Susanna Simpson & Mr Duncan White
Date: 26 January 1710 Case No. No 78.
A bond with a sasine, and an assignation thereto, found among the debtor's papers after his death, held to be extinct.
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In a competition of the Creditors of Simpson of Stonehouse, there was produced an heritable bond by Alexander Simpson of Stonehouse to William Simpson, his brother, in anno 1657, with an infeftment following thereupon, with an assignation in anno 1679 to Susanna Simpson, his brother the debtor's daughter, for 2000 merks principal, and to Patrick and Alexander Simpsons, her younger brethren, for the remainder.
It was alleged by Rollo of Powhouse, another real creditor, That William Simpson's bond was extinct, in so far as the same, with the assignation thereto, were found among the debtor's writs, and so presumed to be paid; and Mr Duncan White got these papers into his hands in manner following, viz. John Simpson, the debtor's son and heir, being a weak man, suffered Mr Duncan White to come into the closet where his father's writs were when he was searching for some papers, and the said John Simpson having the foresaid bond, sasine, and assignation in his hand, Mr Duncan desired to see them; which being granted, he refused to deliver them, but carried them away, and produced them in this process; so they must be considered in the same state they were when in the debtor's hand and custody, and instrumenta apud debitorem reperta præsumuntur soluta.
It was answered; Moveable personal bonds retired by the debtor are easily presumed paid; but the presumption can take no place in this case, because this is an heritable bond, whereupon infeftment has actually followed, and is produced, which cannot be taken off nor extinguished without a renunciation, being a real right. 2do, In this case, there is also an assignation granted by the creditor, Susanna Simpson, Mr Duncan's wife, and her two brothers; so that wherever the bond was found with the said assignation, it was the evident and right of the assignee, which might have been recovered by an exhibition, seeing assignations in the hands of third parties are effectual, and delivered evidents for the behoof of the assignees, more especially in this case, the assignees being the debtor's own children.
It was replied; The bond being retired to the debtor became extinct, notwithstanding of the infeftment following upon it; because the principal bond becoming null, the infeftment wants a warrant; and a bond in the custody of the debtor, though entire, is considered in the construction of law as cancelled and null; beside, the principal sasine was retired with the bond, and an extract would not defend against an improbation.
2do, The assignation makes no alteration in the case, seeing the same was also in the custody of the debtor, and as much presumed to have been cancelled as the bond itself; for although assignations delivered to third parties disinterested do become the evidents of the assignees, yet a bond and assignation delivered to the debtor, becomes his evident, and extinguishes the debt, more especially in this case, where the assignation bears a clause dispensing with the not-delivery, and a power to alter; so that indeed it was a disposal of the creditor's affairs; and the debtor being his only brother and heir by law, his delivery of the bond and assignation to him was an alteration; and farther, the delivery of the bond and sasine did extinguish the debt, and it was no great matter what became of the assignation.
3tio, There is not the least presumption, that the papers were delivered to the father for the behoof of his daughter; for the assignation being in 1679, the debtor survived his brother the creditor ten years, and this assignation never heard of in his time, nor for 16 or 17 years after his decease, and never heard of all that while, nor would have been heard of but by the weakness of the apparent heir, upon the occasion above mentioned; whereas the daughter was married in his own time, and he could not have been presumed so false to his trust, as to have cancelled it all his life.
“The Lords found the presumption relevant to extinguish the bond.”
Fol Dic. v. 2. p. 137. Dalrymple, No 92. p. 128.*** Forbes reports this case:
In the competition betwixt Robert Rollo and Susanna Simpson and her husband, for the mails and duties of the lands of Stonehouse, Susanna Simpson having produced a principal heritable bond of 2600 merks, with an infeftment thereupon in the lands, granted by the deceased Alexander Simpson of Stonehouse to his brother William Simpson, with an assignation thereto from William to Susanna, and to Patrick and Alexander Simpsons their brethren; the Lords found it relevant to extinguish the bond and assignation, that both were in Alexander the debtor's custody after William the creditor's decease; and instrumenta apud debitorem reperta are presumed extinct; and found, That the sasine following upon the bond did not alter the case, seeing the debtor could as easily have taken his name from it, as if it had been a personal bond, whereby the sasine had been null, as wanting a warrant. Nor doth the assignation make any further difference than to change the creditor; and its being put with the bond in the debtor's hand before delivery to the assignees, was equivrlent to cancelling.
