Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION III.

Donatio non præsumitur.
Subject_3 SECT. IX.

Rights taken in name of Children.

Lady Bradisholm
v.
James Muirhead of Bradisholm

Date: 26 July 1706
Case No. No 179.

Where a party had disponed his estate, to free himself from the rigour of the law regarding field conventicles, found he might cancel the disposition, the cause of granting it being done away.

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Rose FIncham, Lady Bradisholm, and her son, pursue James Muirhead elder of Bradisholm, her father-in-law, for exhibition of a disposition made by him in 1686, in favour of his deceased son, her husband, and a sasine following thereon, and having, referred the having to his oath, he deponed, That being imprisoned in the late times, and not taking the test, he was advised by his lawyers to make a disposition of his estate, both fee and liferent, in favour of bis eldest son, a boy then of twelve years old, for preventing all hazard, and that sasine was taken thereupon, but never registered; and afterwards, King James VII. not resolving to press the test, he retired the same, and, after search, cannot find them; but his wife tells him, that she had burnt them, as no more useful, being only done to serve a turn, and divert a storm, which blew over. This oath coming to be advised, the Lady's procurators repeated a declarator, that there being once a jus quæntum, to young Bradisholm by that disposition and sasine, which makes a complete right, it could not be warrantably cancelled afterwards; and though it was not registered, and so could not militate against third parties and singular successors, yet it stood always good against the granter; and he could not lawfully destroy it, but it must be reputed as extant against him, pro possessore habetur, qui dolo desiit possidere. Answered, This right given to the son was never intended for a permanent durable right, but only extorted by the rigour and severity of these times; and that ceasing, cessat effectus: for, suppose the French dragoons caused a Hugonet dispone his estate, if the impression of fear go off, will any say the disposition stands? neither was it ever a delivered evident; and so cannot be pretended to have been fraudulently put away. Replied, If Bradisholm had disponed his estate to a stranger in trust, to save him against rigorous laws then urged, he might have craved to be reponed; but this was to his own son in the natural channel, who was alioqui successurus, and so more favourable. The question being stated, Whether fraudulently put away, or warrantably destroyed? the Lords found, The disposition being only ad specialem effectum, which ceased, he might warrantably cancel it, the delivery and consummation of the deed not being proved.

1707. July 12.—The cause mentioned 26th July 1706, Lady Bradisholm younger contra the Laird, being heard this day, the Lords adhered to their former interlocutor, finding Bradisholm might warrantably destroy the disposition made to her husband, his son. Whereupon the Lady gave in her appeal and protest, for remead of law, to the Court of Judicatory, come in place of the Parliament of Scotland by the articles of the Union. See Appendix.

Fountainhall, v. 2. p. 346. 381.