Subject_1 LOCUS POENITENTIAE. Subject_2 SECT. III.
What writing sufficient to bar Locus Pćnitentić. - Ubi res not est integra. - Rei interventus. - Oath. - An informal writing does not bar Locus Pćnitentić. - Promise to ratify an informal writing bars Locus Pćnitentić.
The Daughters of Christie v. Christie
Date: 22 February 1745 Case No. No 41.
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Although a promise, however absolute, to dispone lands or any other subject, which requires writ, may be resiled from before writ intervene; yet the case is different of a promise to ratify an informal disposition already granted; for, in that case, the action lies upon the informal deed, and the defender is personali exceptione barred from objecting the nullity.
And accordingly, a promise to ratify an informal disposition to land, was, in this case, found relevant by the oath of party.
Kilkerran, (Personal Exception.) No 2. p. 382.*** D. Falconer reports this case.
George Christie, tenant in Kinglassy, having purchased the lands of Auchmuir took the disposition to himself and his wife in liferent, and to George and William Christies, his sons, in fee, with a faculty to himself to dispose of the same, without consent of his sons.
Afterwards, having made another settlement on William, he disponed the lands of Auchmuir to George; but this disposition wanted witnesses, being wrote by William, who had wrote for some time in the town-clerk's chamber in Kirkcaldy, and contained this clause, “And if it shall happen the said George or William to die without heirs lawful of their body, both their provisions shall fall in to the surviver.”
After the father's death, the brothers came to an agreement to implement their father's deed, notwithstanding any defect therein, but the writer of this contract was not designed.
Upon George the son's death, his three daughters pursued their uncle to denude of the half of Auchmuir; and he objecting the nullities in the deeds, was ordained to depone, Whether he agreed to subscribe the agreement between his brother and him; and 2dly, If he did not promise to implement his father's disposition. Accordingly, he deponed before a commissioner, That he had truly subscribed the agreement; and “That he knew his father's inclination was, that his brother should succeed in the whole lands, which he agreed to, and promised to implement and fulfil; but that he was assured that it was their father's inclination, that there should be a mutual tailzie made between him and his brother, of their estates, failing of heirs male of their bodies; and deponed, that he promised, and offered to renounce his right to the lands of Auchmuir, but upon condition of making the mutual tailzie.”
The Lords, 12th January 1725, Found it proved that the defender promised to implement and fulfil his father's disposition or destination to his brother, notwithstanding of any informality therein, and not to quarrel or impugn the said nullity; as also, that he promised and offered to renounce his right to the lands in question; and found the quality adjected was extrinsick.
Upon a reclaiming petition, he was ordered to be examined before the two Ordinaries on the witnesses, before whom, in absence of the pursuer's procurator, he deponed, “That he never did promise to implement or fulfil his father's disposition, but allenarly upon condition of the mutual tailzie.”
Afterwards, he was ordained to be examined in presence, which never took effect, the cause being taken up on another medium, and he assoilzied without any regular alteration of the interlocutor in favour of the pursuers, who thereupon raised a reduction of this decreet, and obtained an interlocutor 19th December 1744, opening it ad hunc effectum, to hear parties, how far the interlocutor 12th January 1725, ought to be altered or adhered into, upon the facts and circumstances alleged in the said decreet, and the proceedings had in consequence of the reclaiming petition against the said interlocutor.
The matter coming thus to be disputed of new, it was pleaded for the pursuers, That the defender could not take advantage of the nullity in his father's deed, in regard he was the writer of it, and ought to have made it formal; and besides, was tied up by his own agreement to implement it, which he owned he had signed: This was evidence his father had no designs of a mutual tailzie between them, and also that he engaged to implement his father's destination.
2dly, He acknowledged his promise in his two oaths, and the quality adhibited by him was extrinsick: He deponed that he subscribed the agreement, promising to implement the disposition, and in it there was no such condition; he also owned he promised implement thereof; and the latter part of the oath did not necessarily imply that the quality was adjected at the time the promise was made.
Pleaded for the defender, both the deeds pursued on labour under such nullities as render them improbative; and the pursuers cannot avail themselves of the first being wrote by him, since he is entirely ignorant in point of law, in so much as to have long entertained an opinion that his father's intention of substituting them to one another, on failure of heirs male of their bodies, was properly expressed by the word heirs, as daughters were heiresses. The second deed being null itself, does not support the first, nor does it prove an agreement to implement it; so that nothing remains but his oath, the quality whereof, which is most true, is plainly intrinsick.
2dly, A promise to dispone land is of no effect to found an action, because there is locus pænitentiæ till it be reduced into writing.
Several decisions were cast up on both sides, how far a null deed was capable of homologation, or how far binding, where the party did not deny the subscription. For the pursuers, 17th February 1715, Sinclair of Freswick against Sinclair of Dunbeath, voce Writ; 26th December 1695, Beattie against Lammie, Ibidem; July 1716, Henderson against Balfour, Ibidem; and the late case, Mr Robert Young against the Managers of the Meeting-house at Montrose, No 33. p. 6370., where it was objected that the letter pursued on was not holograph.
For the defender, 11th January 1711, Gordon against Macintosh, voce Writ; 4th January 1710, Logie against Ferguson, Ibidem; and 11th February 1634, Cassimbro against Irvine, Ibidem.
The Lords adhered to their interlocutor, 12th January 1725, and further repelled the objection founded on the locus pænitentiæ. See Qualified Oath.
See 19th December 1744, between the same parties, voce Process.
Reporter, Lord Tinwall.Act. W. Grant.Alt. Lockhart.Clerk, Kilpatrick.
D. Falconer, v. 1. p. 81.
