Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER LORD FOUNTAINHALL.

Gordon of Lesmoir
v.
Gordon of Clunie and Gordon of Craig

Date: 18 November 1663

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Sir Alexander Gordon of Clunie, James Gordon of Lesmoir, and Jo. Gordon, fiar of Craig, at Invernes, 1626; bind and oblige them in behalf of George Lord Gordon, and for relief of part of his debts, to content and pay to William Dick, merchant in Edinburgh, afterwards Sir, &c. the sum of 14,000 merks. The bond has a clause of relief among themselves. Clunie warrants for L.4000; Lesmoir for 5000 merks, and Craig for 2000 merks. Clunie receives infeftment, for his security, of lands in Scurdarg, Newseat, and Strathbogie; which, because they were liferented by the Marquis of Huntlie, therefore during his lifetime, my Lord Gordon gives him infeftment of the 15 merk land of Susgarrow, in Lochaber, to be intromitted with by him in contentation of the annualrent of his money. Item, out of the mails and duties of thir lands, Clunie binds him to content and pay yearly to Lesmoir the sum of L.400, as the annualrent of that part of the principal sum warranted by him; and that so long as Clunie should bruik and possess the said wadset lands, by uplifting the mails and duties thereof. Item, because immediately upon the decease of the Marquis, Clunie was to enter to the possession of the lands of Scurdarg, Smythston, and others now liferented by the Marquis: Lesmoir obliges him, upon the Marquis his decease, to pay to Clunie L.4000, Clunie then resigning over to him his right he will have to the said lands. With many other mutual clauses and obligements therein. Sir William Dick, in anno 1629, sues for payment at Lesmoir; obtains 7000 merks in part of payment of 14,000 merks; whereon he gives him an acquittance (discharge,) containing an ample assignation for his relief and warrandice of the rest. This Lesmoir's son is charged in Febimary last, 1663, at the instance of one Hierom Spence, of Brunston, to enter heir to his father within 40 days, conform to the Act of Parliament. He renounces to be heir to his father: whereupon the said Hierom obtains against Lesmoir's estate a decreet of adjudication; and so amongst his other rights and securities purchases that right also he had to charge his correi debendi, upon that contract, for relieving and warranting him conform thereto. At last the said Hierom assigns and makes over to Lesmoir (who was the very man he had charged, and upon his charge had renounced,) his decreet of adjudication. Whereupon as assignee constituted he intents this action, and charges the heirs, as well male, line, tailyie, as of provision, both of Clunie and Craig, to make payment to him conform to the said contract passed betwixt their fathers in anno 1626. For instructing of all which to the Lords, was produced,—first, That contract or principal appointment; then Sir W. Dick's discharge, bearing an assignation; then that decreet of adjudication, with the assignation thereof made to the pursuer; then the charges he gave Clunie and Craig their heirs, to enter heirs to their fathers, with the executions thereof. In respect, whereof, the Lords decerned the defenders to make payment of their respective parts as shall be divided.

Act. Patrick Fraser.—It's a decreet in absence. Signet MS. No. 5, folio 1.