Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. XVI.

Price of Heritable Subjects.

Waugh
v.
Jamieson and Lermont

Date: 7 July 1680
Case No. No 89.

A party sold an infeftment of annualrent, and the minute of sale contained a clause, that upon not payment of the annualrent for two years, the contract should be void. The price was found to belong to the seller's executor, and also that the infeftment of annualrent would return to him, and not to the heir, in case the irritancy should be incurred after the disponer's death; for heritable and moveable are considered as after the disponer's death, and no posterior alteration of circumstances has any influence.

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Euphemia Moneypenny being infeft in an annualrent in the estate of Balcomie, she disponed the same to Mr John Smith, her husband, who was never infeft. After his death, she and Mr John Smith, who was heir retoured to Mr John his father, entered in a contract with Mr Robert Lermont, whereby they disponed to him this annualrent, and he is obliged to pay therefor 4000 merks. Mr John, by his testament, leaves a legacy to Thomas Waugh's daughter, which being assigned to her father, he pursues Mr Robert Lermont for payment of the sum contained in the contract. Dr Jamieson having caused adjudge this annualrent from himself as apparent heir to Mr John Smith elder and younger, and having obtained right to the adjudication, compears for his interest, and alleges that the annualrent belongs to him, and in place thereof, the sum due by Mr Robert Lermont; and it cannot belong to an executor or legatar, because none can have right thereto but he who can renounce the annualrent, which is only the heir, or adjudger from him. 2do, Albeit where heritable rights are disponed for liquid sums, moveably conceived, the executor may have right to the sums, though the heir must perform the disponer's part; yet here the contract with Mr Robert Lermont was no perfected contract, but depositated; or at least the contract bears a clause, “That the rights of the annualrent should be put in the clerk's hands, to be depositated in the hands of ———, not to be given up to Mr Robert till he had paid the price; and in case he failed to pay the annualrent in the space of two years, the contract should be null, and the writs delivered back to the disponers;” whence there arise two defences, 1mo, That the rights were, but depositated, and so the contract was not perfect, but pendent and conditional till the price was paid; 2do, Though the contract was once complete, it is become void by the resolutive clause, by not payment of the annualrent for two years.—It was answered for Waugh, That this contract was delivered, and never depositated; and though it bear, That the original writs should be depositated till payment was made; yet that makes not the contract imperfect or pendent, seeing it bears not that if the price be not paid against such a day, the bargain should not proceed, or any suspensive clause, but only a resolutive clause, upon not payment of the annualrent, which cannot be pretended to have been committed before the disponer's death; and though it were committed after, it cannot return the right to the disponer's heir, and dissolve the contract, because at the defunct's death the right was entire unresolved, and so did make the price belong to his executor, after which the heir hath no interest, and cannot found upon a subsequent incurring of irritancy, seeing the executor might have uplifted and discharged the sums before that failure; and no contract is annulled by an irritancy committed simply, but only in case the party in whose favour if is conceived is pleased to make use of it; which here the executor doth not, and will not suffer the heir to do it, seeing it was not committed before the defunct's death.

The Lords at first, when this cause was reported, having considered the case, as if the contract betwixt Smith and Lermont had borne a clause that the contract itself, and the ancient rights were both depositated, found that the depositation made the contract imperfect and pendent, and that the heir was not obliged to fulfil it, but that he might return to his right of the annualrent, and exclude the executor and legatar. But now having heard the cause in their own presence, and considered the contract before extracting, they found, That the contract itself was delivered and not depositated, but only the first contract constituting the annualrent, was to be depositated as a pledge for the price, but neither the disponer nor his heir could resile from the bargain; and found that the contract not having become null upon the irritancy committed before the disponer's death, the price belonged to the disponer's executor and legatar and would not return to the heir, nor the right disponed by any irritancy committed after the defunct's death, and therefore found that the legatar had right, and found the heir liable to perform.

Fol. Dic. v. 1. p. 371. Stair, v. 2. p. 780.