Conventional Irritancy in Bargains, Contracts, and Entails, if purgeable. - Irritancy relative to legatum liberationis, when purgeable.
Dundas of Brestmiln v. The Representatives of Murray of Skirling
Date: 14 December 1714 Case No. No 90.
A contract, contained an irritancy upon non-performance. Found not purgeable, not being penal.
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The lands of Skirling, belonging to Sir James Murray, having been apprised by several of his creditors, another apprising is thereafter also led by Dundas of Brestmiln in anno 1659; but, in the year 1662, the preferable creditors enter into a contract with Sir James, (Brestmiln being none of these contractors), whereby they prorogate the legal reversion (then expired) for four years longer, and also restrict their debts considerably; but provided, that if, within that space, Sir James should fail to sell the land, and with the price to pay them, the contract should be void, and the said creditors their respective debts return to their full extent, and are declared irredeemable for ever, without necessity of any declarator, &c.
The common debtor not having made use of the benefit afforded him by the contract, these creditors sold their interests to Lieutenant-General Douglas, who being taken bound to pay to Sir James's representative L. 1500 Sterling, for a right in his person, and for his good-will; Brestmiln raises declarator for having it found, that he, by virtue of his apprising, was preferable upon the said balance yet lying in the purchaser's hands; where it being alleged for the defenders, that their apprisings were effectually expired, and therefore excluded Brestmiln's apprising. And Brestmiln, on the other hand, founding upon the said contract in anno 1662, whereby he alleged these apprisings were still open and restricted, as in the terms thereof; the question was, Whether, from the above clause irritant, the creditors contractors their apprisings were duly expired, without necessity of declarator? And,
It was contended for the Murrays, That, by the plain words of the contract, it appears to have been the design of the contractors, that the creditors their return to the extent of their rights, should immediately take place upon Sir James's failing to pay; and where both the express words of the contract, and design of parties agree, law cannot fail to support the agreement, otherwise it is impossible to know by what words to make a contract obligatory. And that no declarator should be needful, appears from the great abatements given.
Answered for the pursuer, That the legal of the apprisings having once been open, and they turned into conventional redeemable securities under an irritancy, they would never after expire without a declarator of that irritancy, however the contract was worded, since pactis privatorum non derogatur juri communi. And this was found in the case between Sir Robert Miln, and Sir George Hamilton, and Colonel Erskine, No 48. p. 7212.
Replied for the defenders; That provisione hominis tollitur provisio legis, et cuique licitum est juri pro se introducto renunciare; and therefore, if the creditors' return by the said clause had been simple, the pursuer's commentary might have taken place; but when the return is declared effectual without any declarator, no necessity of one can be pleaded, otherwise all agreements, though never so express, would be precarious. For though irritant clauses, when penal and odious, may require a declarator for their completion; yet it is not so when they are adjected to lucrative concessions, as the Lords found, 20th June 1678, Scot contra Falconer, No 6. p. 98. This also the Viscount of Stair gives as his opinion, B. 4. T. 18 §. 3. “That clauses irritant are effectual without a declarator, where they are not exorbitantly penal. And (says he) such clauses are adjected to gratuitous concessions, because then they are not penal, but are conditions and provisions qualifying the right, and need no declarator.”
The Lords found, That the clause contained in the contract 1662 not being penal, the creditors contractors did return to the full extent of their rights and diligences after the expiration of four years, the estate not being sold within that time, and that without declarator.
1715. January 21.—In this process, as remarked 14th December 1714, Brestmiln now founds upon another clause in the contract 1662, subsequent to the clause irritant, viz. “That if the price to be obtained therefor extend to more than the restricted sums of the creditors, and the annualrents for the time, (viz. of the sale), then the superplus of the price is to be applied to Sir James's other creditors.” And alleged, That the design plainly was, in case the redemption should not be used, then the lands should be sold by the creditors, and the price applied for their payments in the first place, and the superplus for Sir James's other creditors; but not, that these creditors, by virtue of their expired legals, should carry off the estate, or whole price thereof, more than satisfied their debts.
Answered for the representatives, That that provision was only in case Sir James made use of the power given him by that contract, i. e. should sell the lands within the four years; and, by his not making use of that power, the creditors only returned to their own place, but did not get an express title to sell, for that they needed not; so that the clause was only calculated for the event, in case Sir James should sell the land himself. Nay, otherwise this were to make the contract have effect after it is void and null, it being incongruous to say, that it should he void and null as to all effects betwixt Skirling and the contractors, and yet stand effectual as to the creditors not contracting.
Replied for the pursuer, That, by the clause irritant, the contract is not to be null, since it only says, (That then, and in that case, this present reversion shall expire and be void, &c.) but the effect of the irritancy is, that the reversion was to be null, and that the creditors were to have power to sell, and the contract to subsist as a discharge of the reversion in favours of the creditors contractors, and as an obligation upon them to apply the superplus of the price in favours of the other creditors.
The Lords, in consideration of the above clause in the contract 1662, subsequent to the clause irritant, found, that Brestmiln, by virtue thereof, hath right to affect the superplus price in the hands of Lieutenant-General Douglas his heirs, after the restricted sums in the contract are satisfied and paid, together with the annualrents of the same.
Alt. Ro. Dundas.Alt. Sir Ja. Nasmyth et Spottiswood.Clerk, Dalrymple.
Fol. Dic. v. 1. p. 490. Bruce, v. 1. No 17. p. 22. & No 37. p. 46.
