Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Christian Cuming, Claimant upon the Forfeited Estate of Asleid

Date: 10 February 1756

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[Kaimes, No. 101, 113; Fac. Coll. No. 185.]

The Lords, in determining this claim, determined a point of law of some consequence, viz. That a father settling his estate upon his son, and infefting him therein, with powers reserved to himself to sell and dispone, burthen, and impignorate, without consent of his son,—the consequence of such settlement will be, that the father may exercise the powers reserved to him by a personal deed merely, as by a disposition to another, without infeftment, which happened to be the case here, and such deed will annul and irritate the fee in the son; so that, even if the son had sold the estate and infeft the purchaser, or granted real security to his creditors before his father’s revocation, yet all such deeds by the son would fall to the ground, by virtue of the maxim, resoluto jure dantis, resolviturjus accipientis; and this was said to be the case of all resolveable rights, in general, such as wadset rights, adjudications, &c.

Against this there was a decision quoted, observed by my Lord Kaimes, No. 16, Creditors of Provost Graham; but it was observed that there the father had only a faculty to burthen, not to sell and dispone, and therefore, in that case, the Lords found, very justly, that the faculty could not be exercised by a personal deed only, and that the son’s creditors, making their debts real upon the estate, were preferable to the father’s personal creditors by virtue of the faculty. In short, they said, that in that case the father had only a faculty, whereas in this case he has in reality the fee, though nominally it be in the son. Dissent, tantum Bankton.

Adhered to this interlocutor, 23d July 1756.