Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Earl of Home
v.
Janet Steel

Date: 26 June 1765

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[Kaimes, No. 223 ; Fac. Coll., IV. p. 199.]

In this case the Lords were all of opinion that, in the case of a bond heritable before the Act 1661, and of which a bond of corroboration was granted, accumulating the bygone annualrents, although the principal sum remained heritable, yet the accumulated annualrents were moveable; so that of the same sum, contained in the same bond of corroboration, the succession divided betwixt the heir and executor. And the principle is this, that a moveable bond of corroboration, such as this was, alters nothing as to the nature of the subject, quoad the succession, but is only an additional security to the creditor.

There was another point in this cause, of more difficulty. The nearest of kin confirmed a part of the succession, and upon that title brought an action for payment of a bond due to the defunct, not confirmed. In this action the heir and executor appearing, renounced to be heir, upon which decreet of constitution was pronounced, and after that decreet of adjudication cognitionis causa, but still without any confirmation of that particular debt. Another remoter heir of this debtor objects to the payment of this bond, that the adjudger had no title in his person without a confirmation. But the Lords found, that, in respect that the adjudger, by the partial confirmation, had the whole succession so vested in him, that he could have transmitted it to his nearest of kin, and that the debtors could have safely paid him upon his discharge, and likewise, in respect that he had a title to pursue, and could have got a decreet for the money, being obliged only to confirm before extract, and further, in respect that the debtor did not make the objection that the sum was not confirmed,—sustained the adjudication. Dissent. tantum Kaimes et Pitfour.

N.B. If the question had not been with the debtor in the bond, but a competition of creditors, it is likely the decision might have gone otherwise.