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Scottish Court of Session Decisions >>
Anderson v Anderson. [1623] Mor 5513 (15 July 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor1305513-078.html Cite as:
[1623] Mor 5513
Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XIII.
Effect of the death of debtor or creditor before the term of payment, in cases of bonds heritable by clause of infeftment.
Anderson v. Anderson
Date: 15 July 1623 Case No. No 78.
Found that a bond for borrowed money, to be paid at a term, before which the creditor died, remained heritable, because it contained a clause obliging to give immediate infeftment.
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In an action, Anderson contra Anderson, for delivery of writs and obligations to the pursuer, as heir to the defunct, to whom the obligation was made, The Lords found, that an obligation made upon borrowed money, to be paid at a term, before which term of payment the creditor died, remained an heritable bond, and ought to be delivered as pertaining to the heir of the defunct, and not to his executors, because the same contained a clause therein, whereby the debtor was obliged by the bond to give a present infeftment of annualrent to the creditor at the time of the bond; which clause not being conferred to be done, in case of failzie of payment of the principal sum, at the term appointed, but the debtor being obliged in the mean time, before the term, to give the said infeftment, albeit no infeftment followed, yet the bond thereby remained heritable. This appears to disagree a little from a decision, Wallace contra MacDougal, whereof mention is made, February 12th 1623, voce Husband and Wife; except that in this case the clause to give infeftment is not put off till failzie of payment, but presently to be taken.
Act. Nicolson, jun.Alt. Nicolson, sen.Clerk, Gibson.
Durie, p. 73.
