Scottish Court of Session Decisions

Subject_1 IMPLIED OBLIGATION.

Hamilton
v.
Sinclair

Date: 17 January 1622
Case No. No 4.

A party being bound to infeft a lady in an annualrent, was pursued not to infeft, but personali actione, for the amount of the annualrent. This action was sustained, as it was found, that being obliged to infeft, he was bound hoc ipso to make payment.

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Sir George Hamilton pursues the Lord Sinclair as heir to his father, who by contract obliged himself to infeft the Lady Sinclair, from whom Sir George had his right, (whereupon that pursuit was moved) in a certain annualrent out of his lands, to make payment of that annualrent, personali actione; whereto the defender alleging, That the party contractor was not obliged thereto, but only to give infeftment, which she ought first to crave, and if she were therein distressed, so that the infeftment could not be profitable to her, then she might seek personal execution as accords; but she first ought to seek the implement of the contract according to the tenor thereof.———The Lords found, That the party being obliged to give infeftment, he was obliged, hoc ipso, to make payment of that whereof he was obliged to give infeftment, and therefore sustained the personal action for payment.

Act. ——. Alt. Aiton & Nairn. Clerk, Hay. Fol. Dic. v. 1. p. 440. Durie, p. 9.