The exception of death-bed not excluded by an anterior unfinished transaction.
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Hugh Logan, of Logan, being desirous to make some recompence to George Rankin, of Whitehill, for his assistance in the management of his affairs, and being informed, that, in consequence of a destination in the titles of his estate, he could not convey any part of it by a gratuitous disposition, agreed to sell to Rankin, at a price considerably below their real value, the farms of Burnshead and Hylar, reserving possession during his own life. With this view, a minute of sale was executed in September 1801, by which these farms were conveyed to Rankin at the price of £2000; and the entry of the purchaser was to commence at the first term after Logan's death. By a clause in the minute it was provided, that it should be lodged in the hands of Kenneth Mackenzie, Writer to the Signet, till called up by the joint orders of the parties.
Mr. Mackenzie was afterward applied to for the purpose of making out a disposition; but, upon his declining to execute such a deed, and expressing his doubts that a sale of this sort might be reduced as in fraudem of the destination of the estate, a new transaction was entered into, by which a feu of these farms was granted to Rankin, and an annual feu-duty of £10. was stipulated in addition to the price formerly fixed. This feu-disposition, was granted on the 26th January 1802, at which time Logan was in an infirm state of health, labouring under a complication of disorders, which terminated in his death on the 12th of March following, without his having been either at kirk or market.
After Logan's death, Hugh Goodlet Campbell, his nephew and heir-at-law, raised an action of reduction of the feu-disposition of the 26th January, upon the head of death-bed; and Rankin raised an action against Campbell, as representing his uncle, to implement the minute of sale executed by Logan in September preceding.
These actions were conjoined, and a proof was allowed by the Lord Ordinary; which being reported to the Court, counsel were heard in presence, and memorials were afterward ordered. The heir-at-law.
Pleaded: The object of Logan in granting this feu-right was evidently to make gratuitous alienation of his property, to the prejudice of the heir-at-law, who is entitled to reduce the disposition on the head of death-bed, as the granter, at the time of executing it, was labouring under the disease of which he died, without ourviving the requisite period. The heir is not barved by the previous minute of sale from insisting in this reduction; because, in the first place, that transaction never was properly completed, it being provided, that the minute of sale could not be called up from depositary without the consent of both parties, so that either party, by withholding this consent, had a liberty of resiling; and the circumstance of the defender having afterward taken a feu-disposition of his property from Logan, shews that the sale was not understood to be completed; and, in the second place, the feu-disposition may be considered as a virtual revocation of previous minute of sale, because the bargain in the minute of sale being more favourable to the defender, than the terms of feu-disposition, his conduct in accepting it amounts to an implied discharge of the former; (See Implied Discharge, Sect. 5.) And as the feu-disposition takes no notlce of the previous minute of sale, if it was a subsisting deed, it must be held as revoked by the feu-right, it being impossible that there could be both a sale and a feu of the same time.
Answered: The feu-disposition challenged on the head of death-bed, was merely substituted in place of the minute of sale which had been previously executed. The heir-at-law has, however, no title to challenge this deed, because it is more favourable to his interest than the former; and even if this deed were to be reduced, the former one would revive, and be in full force. There is no doubt, that Logan was in hege poustie when he executed the minute of sale; and as by this deed he became debtor to the defender, the subsequent deed was merely in fulfilment of the former dee, which the heir cannot challenge. For, when the heir is excluded form the succession by an irrevocable deed in hege poustie, he cannot complain of any subsequent deed executed on death-bed, which does not contain any addition to the property formerly conveyed; Ersk. B. 3. Tit. 8. § 97; Wilson against Irvine, May 17th, 1796, (not reported.) There can be no doubt that the minute of sale was complete transaction, though desposited in the hands of a third party; for the presumption is with regard to any mutual contract that is put in the depositary's hands for the security of both parties; Bankt. B. 1. Tit. 15. § 10; and a mutual contract does not require delivery to make it effectual; Ersk. B. 3. Tit. 2. § 44; Dict. voce Writ, Sec. 10.
The Lords (15th November 1805) “sustain the reasons of reduction of the minute of sale, and also of the feu-disposition founded on by the defender George Rankin; and in the action for implement, sustain the defences for Hugh Goodlet Campbell, and assoilzie him from the conclusions of that libel.”
A reclaiming petition was afterward refused, without answers,
This cause was likewise argued on its special circumstances, as established by the proof; and it was contended by the defender, that there was not evidence that Logan was labouring under the disease of which he died, at the time when the feu-disposition was executed. Upon this point, it is unnecessary to notice the argument of the parties; but the Court were satisfied that the objection of death-bed was good in the circumstances of the case. Their difficulty lay entirely in the points of law above stated; but, upon the whole, they thought the minute of sale an unfinished transaction, and the feu-right in a great measure gratuitous.
Lord Ordinary, Armadale.Act. Blair, Monypenny.Agent, K. Mackenzie, W. S.Alt. Hay, Cathcart.Agent, Jo. Hunter, W. S.Clerk, Home.
Fac. Coll. No. 238. p. 517.
