Scottish Court of Session Decisions

Subject_1 FIAR.
Subject_2 DIVISION II.

In questions between parents and children, who understood to be fiar.
Subject_3 SECT. IV.

Whether it is expressed, that the Father is Liferenter only.

L Drumkilbo
v.
LoStormonth.

Date: 20 February 1629
Case No. No 47.

A bond for the price of lands was granted to the seller, and in case of his death to his son nominatim, with an obligation, in case of failzie, to infeft the father in an annualrent therefor, and the son in the fee. The father was found to have right to discharge the bond without consent of his son, there being no infeftment expede vesting the fee in the person of the son.

Click here to view a pdf copy of this documet : PDF Copy

A father, fiar of some lands, selling the saids lands, and the price in the contract of alienation being obliged to be paid to the father at the term therein mentioned, and, in case of his decease, to his son named in the contract; and, in case of failzie, the debtor being obliged to infeft the father in an annualrent therefore during his lifetime, and his son in fee thereof, yearly to be paid to the father so long as he lived, and to the son in fee yearly thereafter, ay and while the said principal sum were repaid; the father living after the terms of payment were expired in the bond, whereby it was provided, that the sum should be paid to the son if the father had died before the term; and the father, after the next subsequent term was expired and past, having granted to the debtor a discharge of that sum; after the father's decease, and the son's also, the heir to that son seeking payment of that sum, and alleging that that discharge, granted by the father, who was only liferenter of the sum, could not liberate the debtor, the fee being provided to the son, as said is; the Lords found, that, notwithstanding that the bond was of the tenor foresaid, yet that the power of the sum remained with the father, who might uplift or continue the same from time to time, or discharge the same at his pleasure effectually to the creditor in any time of his life, seeing there was no infeftment expede upon the said bond, nor the fee really established in the person of the son; and that obligations conceived in this manner (no sasine specially following thereon) might be effectually discharged, and the sums thereof uplifted by the father, and disponed on by him in his lifetime, notwithstanding of the conception and tenor thereof foresaid; neither was it respected that the father was alleged not to be suæ rei satis providus, and that the discharge was purchased by the debtor, without any sums really paid to him therefor, which was repelled, seeing it was found that he might have freely discharged the same.

Act. Nicolson et Stuart. Alt. Advocatus et Aiton. Clerk, Gibson. Fol. Dic. v. 1. p. 302. Durie, p. 429. *** Spottiswood reports the same case:

In an action pursued by the Laird of Drumkilbo against the Viscount of Stormont, it was found by the Lords, that albeit William Chalmers of Drumlochie had taken a bond from the said Viscount of 3900 merks, payable to himself at Whitsunday 1619, and in case of his decease before that term, to William his son, and in case of not payment of that principal sum at the said term, the Viscount was obliged to infeft the father in liferent, and the son in fee, of an annualrent effeiring thereto; that yet, at Martinmas 1619, or any subsequent term, the father might lawfully have received payment, or discharged the said sum, before any such infeftment had been taken; in respect the payment thereof was appointed to be made to the father at Whitsunday 1619, and he might have then given a continuation of the payment thereof to any term thereafter, and so he did ever continue to have the full right of that money, until the infeftment was taken according to the provision of that bond.

Spottiswood, (Contracts) p. 70.