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Scottish Court of Session Decisions >>
Mark Drummond, and Mr David Drummond, his Father and Administrator, and Charles Lermont, v James Sinclair. [1714] Mor 4046 (17 November 1714)
URL: http://www.bailii.org/scot/cases/ScotCS/1714/Mor1004046-003.html Cite as:
[1714] Mor 4046
Factory, when revocable - when understood revoked.
Mark Drummond, and Mr David Drummond, his Father and Administrator, and Charles Lermont, v. James Sinclair
Date: 17 November 1714 Case No. No 3.
A debtor granted an assignation of mails and duties to one of his creditors, for payment of debts due to the assigneee and others, bearing to endure for 13 years, and ay and while these debts should be paid, with allowance of L 5 Sterling of yearly salary. After the debtor's death, his heir withdrew the salary, and it was found, that the factory fell by his death.
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The deceast Charles Lermont being in the year 1699 to go abroad, makes an assignation in favours of James Sinclair of the rents of some houses in Edinburgh, for payment of several debts due to the assignee and others, all contained in the assignation; which assignation bears to be for 13 years, and ay and while these debts should be paid, with allowance of L. 5 Sterling of yearly salary. Shortly after granting this assignation and factory, he grants a bond of tailzie in favours of Charles Lermont his nephew, and the said Mark Drummond, tailzing to them, (failing heirs of his own body) the foresaid houses; whereupon, after his decease, they were served heirs of tailzie, and in implement of the bond, adjudged; and now insist, that either the subject may be sequestrated in another factor's hands, whom the pursuers would name, and who would serve gratis; or if Mr Sinclair inclined to continue, that the Lords would discharge the continuance of his salary.
Answered for the defender, That the right in question being a disposition granted ay and while he and the other creditors were paid, with a salary for managing the subject, therefore, as the granter could not remove him, or invert his possession, till the debts were paid, so neither can his heirs of tailzie, who are liable in warrandice.
Replied for the pursuers, 1mo, That the right is no real right, but a naked assignation to mails and duties with a factory; and these subsist no longer than the granter's life; and though heirs be liable in warrandice, yet that is only to be understood according to the nature of the right; and so the warrandice here cannot be said to be contravened by the heirs taking on them the managing of their own estates, and intromitting with the rents after the predecessor's death, which are indeed not assigned, and far less are they obliged to continue a salary to a factor. And yet, 2do, They are willing the rents be uplifted by a factor, (for the behoof of the creditors, if any yet remain) whom they will find to serve gratis.
‘The Lords found no salary due to James Sinclair from Martinmas last; but allowed him to continue his possession, he finding caution to count to all parties having interest, and to do diligence; and in case of his refusal, remitted to the Ordinary to sequestrate, and appoint a factor in common form.
Act. Falconer.Alt. Hay.Clerk, Gibson.
Fol. Dic. v. 1. p. 287. Bruce, No 23. p. 31.
