Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. VII.

Rights having tractum futuri temporis.

Causton
v.
Stuart,

Wylie's Bairns
v.
Hay

Date: 26 March 1626
Case No. No 37.

Bonds bearing to pay annualrent after the term, but without any clause of infeftment, were found to be heritable.

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There were two actions before the Lords, one betwixt Causton and Stuart, and the other betwixt the Bairns of Alexander Wylie, and Sir John Scot their tutor, against Hay, and the Laird of Grant, wherein the defenders being convened for registration of bonds and obligations for sums of money; which bonds bore, ‘ to pay annualrent after the term of the bond,’ but no clause proporting infeftment, nor obligation to give infeftment, neither to pay, as well not infeft as infeft, but simply bearing, to pay ten for each hundred yearly, after the terms of payment; these bonds were found to be heritable, and to pertain to the heir of the creditor; and the action therefore was sustained at the instance of the heirs of the defuncts to whom the bonds were given, and the same were found to be heritable, and not to be moveable, and consequently that the executors of the defuncts had no right thereto. And in the foresaid process of Causton, the bond was desired to be registrated at the instance of the heir of the creditor, which was sustained, because it was heritable, as said is, and against the executors to the debtor, maker of the bond, which the Lords also sustained, and found, that albeit the bond was heritable, yet the executors might be convened for registration of the same against them, and that execution might follow against them for payment of the principal sum to the heir at his instance; and also, that they might be convened at the instance of the executors of the creditors deceased, for all the byruns resting owing preceding the said creditors' decease; which was so found, because the bonds contained no clause concerning any infeftment to be given for the said annualrent, which, if it had borne, then it behoved to have been sought to have been fulfilled by the heir of the debtor; but bearing, as said is, only to pay annual, and that the creditor might charge for his principal sum, it was found to be a fact prestable by the executors of the debtor. But, in this process, the Lords were of the mind, that if the pursuer should seek payment of the annualrent from the executors of the debtor, for any terms after the defunct's decease, and before he should seek the principal sum, and charge the executors for the principal sum, whereby it might become moveable, and so prestable by the executors, that in that case, viz. where the executors are not charged for the principal sum, but only to pay the annual, according to the bond, for terms, as they should yearly thereafter run and fall out to be owing, and the principal sum remaining in the mean time heritable and not sought, that hoc casu the executors could not be found addebted in these annuals, but the same should be craved from the heir; but this point was not decided, for it was not drawn in question hoc loco.

In Causton's Process, Act. Oliphant. Clerk, Hay. In the other Process, Act. Cuninghame. Alt. Belshes. Clerk, Scot. Durie, p. 200.