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Stuart v Fleming. [1623] Mor 11439 (24 July 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor2711439-113.html Cite as:
[1623] Mor 11439
Deeds in favour of Children or near Relations, whether presumed in satisfaction of former revocable settlements?
Stuart v. Fleming
Date: 24 July 1623 Case No. No 113.
A man executed a bond to his natural son for a sum, retaining it. He thereafter infeft him in an annualrent, redeemable for the same sum contained in the bond. As the one did not mention the other, found that both stood.
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In an action whereby———Stuart, natural son to umquhile James Stuart, Provost of Glasgow, pursued Eleming, relict and executrix to his said umquhile father, for payment of the sum of 400 merks, contained in a bond made by the father to the pursuer, which bore, to be granted by the father for love and favour of his son, and was delivered by the father to a third person, to be kept and delivered to the son after the father's decease. The defender compeared and alleged absolvitor, because that bond was fulfilled by the defunct giver thereof in his own time, in so far as the father, for the same cause of love and favour, had given to his son infeftment of an annualrent of 50 merks, redeemable by payment of the like sum contained in this bond, viz. 400 merks; and which annualrent was thereafter redeemed by the father, and the sum paid to the son; all which was done after the term contained in the bond now libelled; and therefore it must be esteemed an implement of this bond, being done after the term of payment appointed thereto, and the sum being alike, and the causes of both the securities one; and being done by the father to his son natural. This allegeance was repelled by the Lords, and they found, that the posterior security took not away the first, seeing the last made had no relation to the first security, nor mentioned that it was given in satisfaction and fulfilling thereof, and that the last security was of a different nature from the first, being an infeftment of annualrent of 50 merks; and that the first bond was consigned by the father to the son's use, which he might have recalled, and taken back in his own time; and not doing the same, it behoved to remain an effectual security to the son, seeing both the securities might subsist, which is to be considered, seeing he was his natural son only, and so might appear not to have the benefit of both securities, as possibly the lawful son might have claimed.
Act. Mowat.Alt. Hope.Clerk, Scot.
Fol. Dic. v. 2. p. 143. Durie, p. 75.*** Haddington reports this case:
1623. July 29.—In the action pursued by James Stewart burgess of Glasgow against Isabel Fleming, relict of his father, who had given him a bond of 400 merks for his sustentation; the Lords found, that a posterior bond given to him by his father, of the like sum, took not away the first.
