Liberty of Disponing without Consent. - Making Provisions a Burden on Lands. - Obliging to lay out on Sufficient Security. - General Abrogatory Clause in an Act of Parliament. - Relieving from Public Burdens.
Dr Gregory v. Helen Burnet
Date: 11 August 1757 Case No. No 64.
A person was bound to renounce a liferent secured on land, on obtaining a new sufficient security. She executed inhibition. It was not recalled, tho' security in a salmon fishing, and the best personal security, were offered.
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An inhibition was executed against Dr Gregory, upon an obligation granted by him in favour of Helen Burnet, his brother's relict, by which he was bound to infeft her in his third of the lands of Blairtoun and Hopshill, for security of her annuity of 600 merks; but under a condition, That if he should happen to sell these lands, she should be obliged to renounce her liferent upon his granting her a new sufficient security.
Dr Gregory applied to have the inhibition recalled upon these reasons: That he had an intention to sell the lands, in order to buy others; and therefore her infeftment would only occasion an embarrassment and additional expence: That he had offered to infeft her in a fishing let at L. 85 per annum; or to give her the best personal security in Scotland; and the situation of his affairs was not such, as to expose her to any hazard by the delay.
Answered, The intention to sell the lands was too vague a reason for delaying the security. The infeftment in a precarious subject, the fishing, was not equivalent; in which subject the Doctor was, besides, bound to infeft his mother for her annuity; and as the fishing was a fee limited to males, her infeftment in it would require the embarrassment of trustees. She was not bound to accept of the best personal security, which was not equal to the security of land. The Doctor was in good circumstances; but he was bound to make such large provisions to his wife and children, that, in the event of his death, a competition of creditors might arise.
‘The Lords refused to recal the inhibition; and found the Doctor liable in expenses.’——See Inhibition.
For the Doctor, And. Pringle.Alt. Garden.Clerk, Home.
Fol. Dic. v. 3. p. 130. Fac. Col. No 53. p. 86.
