Scottish Court of Session Decisions

Subject_1 HOMOLOGATION.
Subject_2 SECT. IV.

Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.

Sir Thomas Hay of Alderston
v.
James Kilgour

Date: 5 December 1755
Case No. No 45.

Acts of homologation after majority, of a deed done by tutors, sustained to bar the minor from reducing that deed.

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Sir John Hay died in the 1706, leaving his eldest son and heir Sir Thomas, then an infant, under the tuition of his mother and two uncles.

A few months after the death of Sir John, these tutors entered into a feu-contract with James Kilgour; wherein, upon the narrative that Sir John intended to have executed this contract had not death prevented, “they sold to Kilgour, his heirs and assignees, certain lands for the sum of 2500 merks. proviso, That Sir Thomas may redeem at any time before his age of 25, upon payment of that sum. And the tutors bind and oblige them, their heirs and successors, to move and cause their said pupil, and his foresaids, at his attaining the age of 25 years complete, either to ratify this present contract in favour of Kilgour, or to repay to him the said sum of 2509 merks.”

Of this feu contract Sir Thomas, in the year 1750, brought a reduction upon this ground, That the same was void and null, as being granted by his tutors without the authority of a Judge; and though he, Sir Thomas, did not redeem before his attaining the age of 25 years, yet, as the tutors had no power to grant this right, they could not limit him in his power of redeeming the lands quocunque tempore, and insisted still to be allowed to redeem.

Answered for Kilgour; Sir Thomas is not only foreclosed by not redeeming within the quadriennium utile, but he has, by repeated acts of homologation, ratified the deed in question, so as to bar his power of redemption; 1mo, By his having stated and cleared accounts with his tutors after his majority, wherein this transaction with Kilgour is stated as an article and allowed. See Crawfurd against Crawfurd, No 73. p. 5694. And though it is named in the accounts a redeemable security made by the tutors to Kilgour, yet it is most properly so described on account of the power of redemption reserved in it to Sir Thomas.

2do, In the discharge granted to his tutors, in consequence of this clearance, reciting their having delivered up to him all his writs and evident, he, by a particular clause, “ratifies and approves all discharges and conveyances made and granted by them during the time of their administration, to whatever persons, as fully as if the same had been therein particularly expressed.” And as he, Kilgour, unquestionably has recourse against the tutors upon the feu-contract, and their obligement therein, so the tutors have recourse against Sir Thomas upon this discharge and ratification.

3tio, Sir Thomas, so far from taking advantage of the clause leaving him at liberty to resile at any time before his age of 25, has continued for upwards of 30 years to receive the feu-duty payable by Kilgour, and to discharge it expressly under that name.

Replied for Sir Thomas; The acts of homologation alleged by Kilgour are not sufficient to bar this redemption. Homologation is never to be presumed where the act is capable of a different construction, nor unless it do clearly appear, that the party was in the full knowledge of the nature and quality of the right which he is supposed to have homologated. The tutorial accounts mention this right granted to Kilgour, as a redeemable securiry for repayment of 2500 merks. Sir Thomas understood it, as the words plainly import, to be a wadset, and as such approved of it; but from thence it cannot be inferred that he had any knowledge of this being an absolute sale of part of his estate, under a limited power of redemption, and as such ever purposed to homologate it. The same answer is made to the other act of homologation, viz. the receipts of the feu-duty. A small feu-duty was altogether consistent with the right, whether containing a limited or unlimited power of redemption; and acceptance of this feu-duty can never import a knowledge that the faculty of redemption was limited to the age of 25, or presume a consent that Kilgour should hold the lands as an absolute right of property. With respect to the discharge granted to his tutors, it appears from a process of exhibition, which was intented in the year 1749, against Thomas Hay one of the tutors, that the whole of Sir Thomas's writings still remained in the hands of the tutors till they were produced in that process, and then, and no sooner, Sir Thomas came to the knowledge of the nature of the right granted to Kilgour; and as the approbation of the tutorial accounts must be explained quoad this article agreeably to the nature of the deed, as stated in these accounts, so also must the general discharge and ratification granted upon the accounts so stated.

The Lords found the lands not redeemable.

Act. Lockhart. Alt. George Cockburn. Clerk, Justice. Fol. Dic. v. 3. p. 271. Fac. Col. No 169. p. 250.