An annuity by a bond granted for a price, being payable at Whitsunday and Martinmas for the preceding half year; no part of it due for such half year, if the annuitant do not survive the respective terms.
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Gilmour, in consideration of a sum of money, granted bond “to Dr. Thomas Glen and his heirs, for an annuity or yearly payment of £.32 Sterling, at the two terms of Whitsunday and Martinmas, by equal portions, beginning the first term's payment at Whitsunday first, for the half year preceding, and the next term's payment at Martinmas thereafter, for the half year preceding that term, and so to continue in the payment of the same at every subsequent term of Whitsunday and Martinmas in all time thereafter, during the natural life of the said Thomas Glen.”
Dr. Glen died on the second day of November; and the Earl of Dalhousie, as his disponee, sued Gilmour for payment of a part of the annuity corresponding to the period from the term of Whitsunday to that day.
The Lord Ordinary pronounced this interlocutor: “Having attentively considered the bond libelled on, which does not constitute a liferent upon a sum of lent money, bearing annual-rent de die in diem, nor binds the defender to pay the annuity thereby constituted, daily and continually during the annuitant's life, but only to pay the said yearly annuity at two terms in the year, Whitsunday and Martinmas, by equal portions, (beginning the first term's payment, &c.) during the natural life of the annuitant, with a fifth part of each term's payment of penalty, in case of failing in the payment thereof, and the due and ordinary annual-rent of the said term's payments from the time they respectively fall due, and during the not payment of the same; finds, that this annuity, similar to an obligation for the payment of rents of lands, being made payable half yearly, at such of the terms of Whitsunday or Martinmas as might occur during the annuitant's life, the defender was not bound to pay any part or proportion of the said annuity, at or for any intermediate period between those terms within which the annuitant died, or at any time occurring after his decease.”
In a reclaiming petition, which was appointed to be answered, the pursuer
Pleaded: The liferent-right of any subject, implies the liferenter's title to the whole produce or profits of it which arise during his life; nor is it inconsistent with this that for the sake of expediency liferents are usually made payable at a certain term. Thus, with respect to money, and all other subjects which yield profit or increase from day to day, the liferenter's right keeps pace with that gradual progress, and the last penny which has thus accrued at the day of his death, though the term day be ever so distant, is due to himself or to his executors; Ersk. B. 2. Tit. 9. § 66; Relict of Mr. Thomas Linning against Gustard, No. 53. p. 15914. It is true indeed, that had the subject here liferented been lands, the fruits of which arise not de die in diem, there would have been no room for this claim, because then the profits, which are understood in law as unum quid, existing at one particular period not arrived, could not have been said to accrue prior to the annuitant's death. But the liferent annuity in question is that of a stock or sum of money; the circumstances, of a higher rate of interest than the legal one, and of the debtor's being discharged of the obligation of payment, which are all that distinguish this from any other case of money bearing annual-rent, being evidently of no consequence.
If the money paid by the annuitant were even considered as a price; this, which is the only other possible supposition, would lead to the same conclusion. For if it was the price of any thing, it was that of an alimentary provision, which, by its very nature, must be understood to correspond to the whole subsequent lifetime of the party for whose use it was destined. This is not only the reasonable presumption in the case, but likewise the legal one; Ersk. loc. sup. cit.; otherwise, and on the supposition that no proportion of the annuity was due prior to the term of payment, the annuitant, except on the term-day alone, could never be certain of obtaining a shilling for his subsistence at any period in the course of his life.
Answered: A sum of money, which is properly said to be sunk or extinguished, cannot, with any propriety, be deemed a subsisting stock. Here there was no stock to bear either continual or periodical profits. A price was indeed paid for the obligation in the bond; and that obligation was qualified by the condition, that the payments were only to be made at the terms of Whitsunday and Martinmas which should occur during the annuitant's natural life. The half year's annuity in question then could never become payable, as the corresponding term did not arrive till after his death. This dies incertus pro conditione habebatur. In like manner, when a provision is, by a marriage-contract, made payable at a certain term, before which the party for whom it is destined is predeceased, there is no room for any claim corresponding to the period which he did survive.
The Lords adhered to the interlocutor of the Lord Ordinary, sustaining the defence.
Lord Ordinary, Eskgrove.Act. Rolland.Alt. R. Armstrong.Clerk, Sinclair.
Fac. Coll. No. 73. p. 132.
