Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Andrew Clerk, Burgess of Saint Andrew's, and Isobel Reid, his Spouse,
v.
the Creditors of Broadlees

Date: 17 July 1712

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In the competition of the creditors of Broadlees, there was produced for Alexander Clerk and Isobel Reid, his spouse, an heritable bond of provision, with infeftment thereon, granted by Alexander Reid of Broadlees, in favours of his younger children for 12,000 merks, whereof the said Isobel Reid, his daughter's share, is 3000 merks.

Alleged for the creditors,—Isobel Reid and her husband cannot crave preference upon the bond of provision, because the same is innovated, in so far as, in their contract of marriage, George Reid of Broadlees, Isobel's brother, had obliged himself to her for the like sum of 3000 merks; which she, with consent of her husband, accepted in full satisfaction of all executry, and portion natural, which might fall to her through the decease of her father or mother, and of all former provisions made to her by her father; and therefore discharged George Reid, and all other representatives of her father, thereof.

Answered for Alexander Clerk and his spouse,—Novatio nunquam præsumitur, unless particularly expressed: L. ult. C. de. Novat. And contracts of marriage being reckoned uberrimæ fidei, it can never be supposed that, by this contract, containing no more than what Isobel Reid was provided to formerly, she was to renounce any former security. The adjected general clause, “of all former provisions,” can be understood only of things of that same nature with those specially mentioned. The design of taking the brother bound for the 3000 merks, seems only to have been to afford immediate access against him, without a previous constitution, for payment of what he stood antecedently bound for as heir to his father. 2. There can be no novation, nisi ubi prior obligatio perimitur; L. 1. ff. de Novat: and here the annual-rent constituted by infeftment, could not be extinguished by the clause in the contract of marriage, but only by an express renunciation. The Lords have never found the accepting a new right in satisfaction of a former debt, to be an innovation thereof; except in the case of personal obligations, which are ipso jure extinguishable by a discharge, or nudo pacto, which infeftments of annual-rent are not.

Replied for the creditors,—The heir's new obligation being given expressly in satisfaction of the former, and it appearing to have been the meaning of parties not to corroborate, but to take away the former obligation; the same becomes extinct and innovated: 23d July, 1633, Lawson contra Scot; 6th December, 1632, Chisholm contra Gordon. As a farther argument, the term of payment of the tocher differs from the term of payment in the heritable bond, which is a distinguishing mark of innovation: § 3. Instit. Quib. mod. toll. Oblig. And a discharge, or innovation by accepting new security in satisfaction, doth extinguish ipso jure real as well as personal debts, as to the creditor himself; a registered renunciation being only necessary for certifying the lieges, and to secure against singular successors.

Duplied for Alexander Clerk, &c.—The exception upon this discharge of the bond of provision is taken off by this reply, That the money for which the discharge was made is not paid; and qui ex contractu mutuo et correspectivo agit, nisi prius ex sua parte adimpleverit, a limine rejicitur. So Dirletoun, Tit. Mutual Obligements in Contracts, holds that the compriser of a minute of sale will have no action for implement, unless he pay the price; seeing the price is the final cause of the disposition: and agreeable hereunto is the decision, 3d December, 1675, Lady Musewell contra Creditors of Musewell.

Triplied for the creditors,—The Lady Musewell and the party contracting with her were under mutual obligements to perform deeds in futurum; whereas here is no obligement in futurum, but all transacted and performed de præsenti.

The Lords found, That the provision in the heritable bond by Alexander Reid to his younger children, is innovated as to Isobel Reid's share, by her contract of marriage: but allowed parties to be heard upon the import of causa data non secuta in this case.

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