Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PERSONAL AND REAL.
Subject_3 A faculty to burden, to the extent of a certain sum, being reserved in a disposition by a mother to a son, who, of even date, granted a relative personal obligation therefor - whether that sum was thereby made a real burden de prœsenti? whether the faculty was exercised habili modo, by after deeds of the mother's executed with that view?

James Hill
v.
Mary Hill

Date: 5 July 1774

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[Fac. Coll. VI. 321; Dict. 10,180.]

Monboddo. A great deal of the argument goes to matters distinct from the merits of the cause; which turns upon this single point, Whether the 8000 merks are a real burden on the land? I am clear that there is a real burden.

Coalston. A reserved faculty does not create a real burden on lands. Here there was a real burden, if exercised. The difficulty is, that the power has not been exercised in a proper manner: it is in a personal not an heritable bond. Intention is not sufficient. In the case of a bond secluding executors, intention is not carried into execution.

Kaimes. A faculty is not a burden. It is neither a moveable nor an heritable subject. But this is an anomalous case; a marriage contract, ex facie, containing a faculty, but, in another deed of the same date, converted into a burden. Had this been done in the same deed, it would have been clearly a burden. Why should its being in another deed make any difference?

Alva. The intention of parties is plain. No one could pretend ignorance. All parties having interest supposed that there was a burden.

Monboddo. In all the many cases quoted in the answers, there was merely a power to burden: here an exercise of the power.

Justice-Clerk. The meaning of the clause is, that, if a deed is executed, there shall be a burden.

President. I thought the cause clear. There is no actual burden, but merely a power of creating a burden.

On the 5th July 1774, “the Lords found that the 8000 merks disponed by Mary Crawford to her daughters, was moveable quoad the said daughters, and descended to their nearest of kin, and not to their heirs;" adhering to Lord Kennet's interlocutor.

Act. R. M'Queen. Alt. Ilay Campbell.

Diss. Kaimes, Alva, Monboddo.