Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

George Home of Foord
v.
Thomas Wolfe

1663. June.

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George Home of Foord obtains decreet against Mr Thomas Wolfe for poinding the ground of his lands of Wedderly, for an annualrent of 100 merks, contained in an infeftment granted to Foord's father by Mr Thomas's father. This decreet is craved to be reduced upon divers reasons, namely, That the ground could not be poinded for the said 100 merks, because the charter whereupon the decreet is founded, is relative to a contract; which contract, if it were produced, would bear that annualrent to be redeemable for 1000 merks, according to the case and custom for the time; and which contract Foord ought either to be ordained to produce, otherwise the Lords ought, in justice, to restrict the annualrent, according to the Act of Parliament: especially considering the many pregnant presumptions adduced in the case, which, though they be not so great evidences, as that the Lords could thereby judge the principal sum satisfied, and the infeftments renounced, in regard of the existence of the charter and seasine; yet they are such, that, unless the contract be produced by Foord, the Lords may very justly restrict the annualrent. The presumptions were the date of the infeftment in anno I616, whereupon never any thing had followed, but only a process inteiited to interrupt prescription, and a decreet recovered after fifty years' time, the contract not extant; which seems to have been destroyed when the money has been paid, and the charter and seasine neglected to be retired and delivered. Foord's father, in anno 1624, received another right of annualrent for 3000 merks, not relative to the prior infeftment for 1000 merks, wherein it maybe thought that 1000 merks was included, it not being reserved: and which 3000 merks was also satisfied, without any reservation; likeas, Foord's father, having acquired his estate of Foord, never sought nor questioned the said right which was prior; and he, having made a disposition of his haill estate to his son, this Foord, including all his lands, moveables, and others belonging to him, he did nut therein maintain this annualrent; and the disposition made to this Foord, the second son, was done in regard the eldest son, yet living, was a person unfit for government, and such a one as was fit for nothing but for an aliment; and this Foord, after so long a time, falling upon this charter and seasine, caused this weak elder brother dispone a right thereof to him, as heir to his father, and did obtain himself decerned and confirmed executor, for establishing an interest to the bygone annualrent. These pregnant presumptions, and the whole merits of the cause, being considered, the Lords (though, in law, they thought the infeftment could not be taken away as to the annualrents bygone and in time coming, yet they) thought that they might restrict the annualrent, unless Foord would produce the contract, which was the ground of the infeftment, that it might be known whether the annualrent was redeemable for a principal sum or not. And, on the contrary, it was answered and suggested, That, seeing the Lords could not take away the infeftment, it behoved to stand in terminis, notwithstanding the contract was wanting, which, being a mutual evident, the granter was obliged to produce the same, if he founded any thing thereupon. But these many presumptions, and the contract, being wanting, and not produced by Foord, as well as the charter and seasine, after so long a time,— moved the Lords to restrict the annualrent.—In præsentia.

No 81, Page 62.