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Scottish Court of Session Decisions >>
L. Hartwoodmires v Turnbull. [1634] Mor 6436 (22 March 1634)
URL: http://www.bailii.org/scot/cases/ScotCS/1634/Mor1606436-039.html Cite as:
[1634] Mor 6436
Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. VII.
Inhibition of Teinds, how past from. - Requisition or Premonition. - Decree Arbitral. - Recognition. - Legal Exception. - Provision of Conquest.
L Hartwoodmires v. Turnbull
Date: 22 March 1634 Case No. No 39.
After a decree-arbitral had been pronounced on a submission, the parties of new submitted the matter. Neither party expressly renounced the former decree, and the last submission expired before decree was pronounced. The former decree was found to be still valid.
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A submission being made betwixt these parties to arbitrators, anent either of their rights of the lands of Philiphaugh and Hadden, the Judges decerned Turnbull to dispone to Hartwoodmires, with consent of Turnbull his son, his right of the said lands heritably, and Hartwoodmires to pay therefor to Turnbull 7000 merks; whereupon Turnbull being charged, he suspends, that the decreet is null, being ultra vires compromissi, seeing he had submitted all his right that he had to the lands, and took no burden for his son, so that the Judges had no power to decern him to dispone with consent of his son, but his own right only. The Lords found this reason noways sufficient, but sustained the decreet, seeing it was a base fee, which the son had acquired from the father, which right coming to the arbitrator's knowledge, after the submission, they shewed to the suspender, that they behoved to decern him to obtain his son's consent to that disposition of the land, without which he could not have a perfect right, whereunto the suspender acquiesced, and was content therewith, and which the charger offered to prove by the declaration of the arbitrators. The Lords sustained the same to be so proved, for they found it unjust, that the heritable right of the lands should subsist in the son's person, and that the father should receive from the charger, as the decreet-arbitral appointed, 7000 merks, which was reputed to be a competent price for the full right of the lands. It being thereafter alleged, That the charger had past from the said decreet, in so far as, since the date thereof, he had of new again submitted his right of these lands to the arbitrators, whereby he could never clothe himself with that sentence, nor return thereto; this allegeance was repelled, seeing nothing had followed upon the new submission, nor no sentence given thereon; for the Lords found, that the submission being expired, and nothing done thereon, and the charger never expressly renouncing his former decreet in the submission, he was not thereby prejudged in the said sentence, but the same stood in its own force, and so the decreet was sustained, and found not ultra vires.
Act. Stuart.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 434. Durie, p. 716.
