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Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. I.
In what cases the privilege competent.
Donaldson v. Donaldson
Date: 12 July 1749 Case No. No 21.
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That the defence of Minor non tenetur placitare bars not an objection of nullity to the right itself.
Kilkerran, (Minor.) No 12. p. 353.*** D. Falconer reports this case.
1749. July 12.—James Donaldson was infeft, 9th December 1721, in the lands of Bannachrae, on a disposition from James Donaldson of Muiroch, his father; dated 1716; reserving the disponer's liferent, and power to alter, and with the disponee's name apparently wrote in a different hand from the rest of the deed, and still blank in a clause imposing a condition on his heirs-female of marrying a person of the name of Donaldson, adjected after the testing clause.
James Donaldson of Muiroch died 1724, when James younger took possession of the lands disponed to him, and kept it till his death in 1735, when they were entered upon by James his son.
William Donaldson of Muiroch, eldest son of old James, insisted in a reduction of the disposition against his nephew; who pleaded, That he was minor, et non tenebatur placitare super hæreditate paterna.
Answered, To make hæreditas paterna, the ancestor must have been infeft; and the question is concerning the validity of the warrant of the disponee's sasine.
Pleaded for the pursuer, The disposition is null by act 1696, prohibiting blank writs, being apparently blank in the dispoitee's name, which is filled up with a different hand, and still blank in one clause.
For the defender, It is only a nullity that deeds are delivered blank; and this disposition was filled up before delivery by the sasine taken thereon, which was before the granter was on death-bed; and was also homologated by a deed, 1722, to his third son, reciting it, and burdening the lands with a sum to him, in the event of the disponee's dying childless.
Replied, If the disposition is null, it cannot be made effectual by homologation; beside, the bond is suspicious, being executed after the father had, in a great measure, lost his judgment, as can be proved; and wrote by the notary, who, about the same time, took the sasine, and to conceal the nullity of the warrant, committed a falsehood, by filling up in the recital of the precept the name of the disponee, in that clause where in the disposition it still stands blank.
The Lords, 10th February, found, that there was sufficient evidence to presume that the disposition quarrelled was blank in the disponee's name, when it was signed by James Donaldson, the disponer; and, therefore, sustained the reason of reduction on the act of Parliament 1696, anent blank writs, unless the defender should prove that the said disposition was filled up with the disponee's name, at subscribing thereof, or afterwards, in the presence of the witnesses signing to the same; and repelled the defence of homologation founded on by the defender; as also the defence, that minor non tenetur placitare super hæreditate paterna: And, on bill and answers, adhered.
Reporter, Lord Elchies.Act. W. Grant.Alt. R. Craigie & Lockhart.Clerk, Murray.
D. Falconer, v. 2. No 83. p. 90.
