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Scottish Court of Session Decisions >>
Henderson v Henderson. [1668] 2 Brn 437 (24 February 1668)
URL: http://www.bailii.org/scot/cases/ScotCS/1668/Brn020437-0734.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Henderson v. Henderson
Date: 24 February 1668
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Henderson having disponed some tenements of land to another, so called; in the narratory part of the which disposition, the consideration of his mortality, and his going off the country are the impulsive causes of the right: and it had the common style of a testament; but thereafter, in the body of it, he assignees him to the mails and duties, and gives him power to dispone thereon; and contains a procuratory to resign, and warrandice. It was doubted if this was habilis modus, to convey heritage, or if it was a testamentary disposition.
The Lords found it had the force of a disposition, but withal it was revocable by the disponer: and because this right was made when he was going off the country, they found that his heir proving that it was in his hands, after his return, the same was a tacit revocation thereof, and so found it to belong to the heir; and yet they found it probable by witnesses, that he gave warrant to deliver it to the defender.
