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Scottish Court of Session Decisions >>
Clayton v Graham. [1791] Mor 2345 (00 January 1791)
URL: http://www.bailii.org/scot/cases/ScotCS/1791/Mor0602345-072.html Cite as:
[1791] Mor 2345
Importing an Obligation, or only a Faculty. - Pre-emption. - Redemption.
Clayton v. Graham
1791. Case No. No 72.
A clause of redemption in favour of heirs male, in the event of an estate devolving on females, found unavailing against an onerous sale by the institute.
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James Clayton conveyed certain lands to his son Thomas, and to the children of a marriage; whom failing, his son's heirs by any other marriage; and failing these, to the heirs of the granter. The disposition contained a clause, that in case of the failure of heirs male of his son, and that the succession should devolve to females, a right of redemption of the lands from the heir female should be competent to the granter, and to his heirs-male, for six years after the succession thus opening to an heir female. Thomas Clayton having sold the lands, a doubt occurred to the purchaser, that as Thomas had an only daughter, and a brother of the disponer, who was his heir male, was yet alive, the right of redemption might still be competent, on Thomas's death, to this heir male of his father; and the question was tried in a suspension brought by the purchaser.
The Lords were of opinion, that although the clause of redemption could not have been defeated by any gratuitous deed of Thomas Clayton, it was not available against an onerous deed; and therefore found the letters orderly proceeded. The like found, 1791, General Græme's Trustees contra Stewart Moncrieff's Trustees, voce Fiar Absolute, Limited.
