Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 IMPLIED OBLIGATION.
Subject_3 A superior granted a feu of ground absolutely and irredeemably; and the feuar afterwards granted a bond, obliging himself and his heirs, whenever he should think fit, to dispose of the subject, - to offer it to the superior at a stated price. Found, that the feuar must insert the tenor of this back-bond in all the subsequent investitures of the ground, so as to make the right of pre-emption effectual against singular successors.

Sir Charles Preston
v.
Archibald, Earl of Dundonald

Date: 20 November 1781

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[Fac. Coll. IX. 29; Dict. 6569.]

Monboddo. Aequim et bonum is deeply concerned in this case. My rules of equity are learned in the Prætor's edict. All words that are proper have not been employed: nevertheless, the intention is clear; and the court is called upon to make it effectual. If the question were with a creditor or a purchaser, the Court would not interpose. I think that, within sixty days of its date, this deed of reversion might have been recorded, and then that it would have been effectual against all the world. I think that, in good conscience, and by the law of the land, the heir of Charles Cochran is bound to renew the deed, that it may be put on record.

Braxfield. The only interest that the Earl of Dundonald can qualify against doing what is demanded of him, is, that he should not be obliged to do what in honour and conscience he ought to do. When a man comes under an obligation merely personal, and not respecting any particular subject, the creditor must make it effectual by legal diligence, as he best can; but when that obligation respects certain subjects, the parties contracting must do every thing to make it effectual. In the case of lands, if I sell, without saying any thing more, I can be obliged to grant procuratory and precept to complete the sale. The intention of the parties here was to give a permanent right to the Preston family; and this intention must be made effectual.

Gardenston. Here there is an implied obligation to perfect the personal right. An obligation merely personal must remain so till the creditor makes it real: the debtor is not bound to do any thing.

President. I admit that this is an ungracious cause. The law will make every thing effectual that is intended to be a real right; but I doubt of that: when the deed is not only personal but complete suo genere.

On the 20th November 1781, “The Lords found that the tenor of the backbond libelled must be inserted in all the titles and investitures of the ground in question;” altering the interlocutor of Lord Alva and their own interlocutor of the 27th July 1781.

Act. R. Blair. Alt. D. Rae.

Diss. Alva, Hailes, President.

N.B. When the cause was formerly advised, there were against the Ordinary's interlocutor, Auchinleck, Monboddo, Braxfield.

Non liquet, Stonefield.