Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.

Marquis of Annandale
v.
The Earl of Hopetoun

1739. February.
Case No. No. 12.

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By contract betwixt the Marquis of Annandale and Countess of Hopetoun, she yielded to him Craigiehall, rated at L.450 sterling, and discharged him of bygones; but if the Marquis's second son should succeed to Craigiehall, these interim rents at L.450 per annum were to be repaid the Countess. 2dly, If any other heir not of the Marquis's body besides the Countess should succeed to the estate of Annandale, such heir to repay the interim rents of L.450 and L.1250 more, or in the Countess's option a sum equal to the half of the interim rents more. The Countess (who was also executrix to her brother) pursued Marquis George as representing Marquis John, particularly, by passing him by and serving heir to his father Marquis William, after having got certification against the procuratory on which Marquis James's infeftment proceeded, (vide inter eosdem voce Prescription, 25th June 1735,) and being assoilzied from a proving of the tenor of it by the House of Lords. The Lords in this new process, 1mo, Found the contract onerous. 2do, Marquis James having been ihfeft, and his infeftment often homologated and acknowledged by his father Marquis William the granter of the procuratory, they found, that notwithstanding the decree of the House of Lords and certification here, the onerous debt of Marquis James may affect the estate of Annandale. But found 3tio, That in so far as this present Marquis is found liable on the act 1695 he has relief against the other estate of the last Marquis, 22d June 1736, 6th July 1737, and 31st January 1738; when they also found that in so far as the Marquis is liable on account of the last Marquis's infeftment, he has no relief against the executry and separate estate. But upon appeal, the House of Lords found the contract onerous as to the interim rents of L.450, and the Marquis liable for them. They affirmed the interlocutor, that onerous debts of Marquis James may affect the estate of Annandale, but found the Marquis had no relief against the executry or separate estate, neither as liable on the act 1695, nor on the last Marquis's infeftment, since the last Marquis burdened expressly the heir with it.