Scottish Court of Session Decisions

Subject_1 FIAR, ABSOLUTE, LIMITED.
Subject_2 SECT. III.

Simple Destination.

Græme's Trustees
v.
Stewart Moncrief's Trustees

1791.
Case No. No 19.

A power of redeeming an estate in favour of a third party, failing heirs-male of the disponee, does not preclude the disponee from selling.

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Baron Stewart Moncrief's Trustees had purchased from the Trustees of General Græme the lands of Gorthy, for L. 26,000. It appeared General Græm's right was burdened with a power of redemption, expressed in the following terms:

“In case of the death of the said General David Græme, without heirs-male of his own body, the lands, baronies, &c. are and shall be redeemable by Mungo Græme, second lawful son of the said deceast James Græme of Braco, or the heirs-male of his body, from the person succeeding to the said General David Græme, or the heirs-male of his body, or from any other of the substitutes, &c. by payment to the person so in possession, of the sum of L. 6 Scots money, upon any term of Whitsunday or Martinmas, the said Mungo Græme, or his heirs-male, shall think fit.”

There was no prohibition to contract debt, or sell, or alter the course of succession, but Moncrief's Trustees brought a suspension, to have it tried whether the person in the right of redemption, on the death of General Græme without heirs of his body, would have any claim.

The clause of redemption had been inserted for this reason;—Mungo Græme, in whose favour the power of redemption was given, was the immediate younger brother of the General; but, at the time of executing the deed, it was not known whether or not he had died abroad. The right was given to him, failing the heirs, to whom, had he been certainly alive, he would have been substituted.

The General, however, had an irredeemable right to the estate. The disposition in his favour contained no prohibition to sell or alter the succession, therefore his Trustees possessed the entire right of disposal of it. It was accordingly so found; so that the purchasers were in perfect safety to pay the price.

Ordinary, Stonefield. For Stewart's Trustees, A Tod, W. S. Agent. For Græme's Trustees, H. Corrie, W. S. Agent.