Inhibitions are not allowed to pass, on conditional obligations, where there is no appearance of the existence of the condition.
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In the contract of marriage of Andrew M'Creadie younger, now of Pearston, Andrew M'Creadie his father provided the estate of Pearston “to his son, and the heirs-male of the marriage, which failing, to the heir-male of any other marriage; and in case of daughters only, and no heirs-male, the father and son became bound to pay certain sums to the daughters, one or more.”
After the death of Andrew M'Creadie elder, his daughters and executors observing that their father was bound for the said provisions to the daughters of his son, in the event of there being no heirs-male, executed a summons against their brother to relieve them thereof, and on the dependence an inhibition; and the defender having applied to have the inhibition recalled, and the registration thereof stopped; or if already registrated, that the users should be ordained to discharge it, and to registrate the discharge along with the inhibition; on this ground, that having three sons alive, and three daughters, and his spouse a young woman bearing children, there was no likelihood of the event's happening on which the pursuers are liable to be subjected to the daughters provisions, the Lords 'granted the desire of the petition.'
It were right that no inhibition passed but causa cognita; but this much is a settled point, that on conditional obligations, inhibitions are never allowed to pass, where there is no appearance of the existence of the condition.
Fol. Dic. v. 3. p. 320. Kilkerran, (Inhibition.) No 7. p. 288.*** D. Falconer reports the same case:
Andrew M'Cready of Pearston, disponed his estate in his son Andrew's contract of marriage, to him, and the heirs-male of his body; which failing, to the eldest heir-female of that marriage, “with, and under the burdens, provisions, and conditions after specified,” which were, that the son and father, as taking burden for him, did burden and affect the lands with the sum of 15,000 merks Scots, which they obliged them to pay to the children other than the heir; and if there should be only daughters of this, and a son of a subsequent marriage, they are obliged to pay to one daughter 20,000, to two 24,000, and to three 30,000 merks; and failing sons altogether, in which case the eldest daughter was to succeed, to pay to the younger daughters 15,000 merks, and to the wife a liferent of 900 merks.
The executors of old Andrew M'Cready pursued young Andrew for relief of these provisions, and thereupon inhibited him.
On a petition from Andrew M'Cready, shewing, that he had three sons, so that there was little danger of the provisions in case of no sons of the marriage taking place, and answers thereto,
The Lords recalled the inhibition, in so far as it proceeded on the provisions conceived in favours of the daughters in the case of the estate's falling to a son of a subsequent marriage; and declared, that upon Andrew M'Cready's securing by infeftment his younger children for their provisions, within a limited time, they would also recall it, in so far as it proceeded on them; and superseded considering how far it could stand upon the obligation to pay the Lady's jointure, till it appeared whether she was secured by infeftment or not.
Petitioner, Lockhart.Alt. Boswel.
D. Falconer, v. 1. No 162. p. 214.
