Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. V.
Effect of Substitutions.
Mr Hugh Gray, Son to the deceased Mr Hugh Gray of Dalduff, v. Hugh Cairncross of Hilslop
Date: 16 January 1711 Case No. No 30.
A bond payable to one, and failing him by decease, to a blank person, his heirs, executors, or assignees, upon which, though it bore a precept of sasine, the creditor never took infeftment, but by his testament ordered his son's name to be inserted in the blank, found to be heritable and not altered in its nature by the testament.
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In an action at the instance of Mr Hugh Gray against Hugh Cairncross, for payment of the bygone annualrents of 2000 merks, contained in a bond granted by Walter Cairncross the defender's father, payable to Mr Hugh Gray of Dalduff, the pursuer's father; and failing of him by decease, to ———— substitute, his heirs, executors, or assignees; upon which bond, though it bore a precept of sasine, old Mr Hugh did never take infeftment, but by his testament ordered his third son Thomas's name to be inserted in the blank, and assigned the bygone annualrents to him the Lords found, That the bond is heritably conceived, and that the nature thereof was not altered by the testament; albeit it was alleged for the defender, That utcunque bonds with a precept of sasine payable to heirs or assignees, or secluding executors, are considered as heritable, though no infeftment follow thereon, from the creditor's presumed intention to have his money secured by infeftment; yet that presumption ceaseth in this case, where he hath testified his inclination to the contrary, 1mo, By taking the bond payable to heirs, executors, and assignees; 2do, By neglecting to take sasine; 3tio, By disposing upon the principal sum by a testamentary deed, which is a more direct indication of the testator's mind to have the bond moveable, than if he had caused charge for payment. Again, though a bond containing a precept of sasine is presumed to be heritable, from the supposed will of the creditor, which doth not appear in this case, it is not simply so; in so far as, albeit inhibition secures against the alienation of any heritable subject, to the prejudice of the debt for which it was used, it doth not hinder the creditor in a bond containing precept of sasine, to dispose thereof at any time before taking infeftment, 31st December 1703, Oliphant contra Irving. Sec. 19. h. t.
