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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Rhymer v. Balfour
Date: 29 November 1711
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Anderson, maltman in Couper, being heritor of six acres adjacent to that town, and dying without children; Rhymer, his sister's son, being next heir, Balfour (who was his nephew) applies to Rhymer, and tells him he hears that Anderson, his uncle, had made some right or conveyance of these acres to a third party; but if he would dispone the half of them to him, he, by his friendship and favour, would warrant him against any such deeds. And on this suggestion he induces Rhymer to enter into a contract with him, by which he obliged himself to serve heir, and then dispone three of these acres to him, and he became obliged to secure and relieve him of any prior rights his uncle had made. Rhymer, having made inquiry, finds there were no such disposition made by his uncle; and thinking himself circumvened, he raises a reduction, ex capitefraur dis, and that dolus dedit caasam contractui; in so far as he offered to prove, by Balfour's oath, that the true inductive cause of his entering into that minute, was Balfour's asserting to him that his uncle had disponed these acres, and he would defend him against that right; and he acknowledging that it was the procatartick cause, then Balfour must prove the being of such a disposition, otherwise it was a mere snare and contrivance to trick him out of his three acres.
Alleged,—Nullo modo relevat that my telling you such a report was the motive inducing you to enter into that agreement with me, unless you add this farther qualification, that, notwithstanding of my suggestion, yet I knew there was no such right nor disposition made by your uncle; without which addition the first part is noway relevant to reduce such a plain and clear agreement.
Answered,—There is no just onerous equivalent cause here so much as pretended, and so fraud is the more easily presumed; and you was in pessimo dolo to induce me, by affirming there were rights made by my uncle, unless you instruct the reality and existence of such rights; for qffirmanti incumbit probatio; and now, after a course of years, no such thing appearing, law presumes there never was such a disposition; for non esse et non apparere ccquiparantur injure. It is true, Icesio ultra dimidium justi pretii does not annul bargaining with us; but that holds only in sales, that trade may not be embarrassed: but in other affairs it is most consonant to the practice of all the civilized nations of Europe. Fachinaeus, lib. 2. Controvers. cap. 26, says, dolus ex rei evidenlia is the same with dolus in proposito. And A. Gayll, lib. 2, Observ. 147, concurs that dolus ex enormi Icesione rescindit contractum; and Mascardus, vol. 1, Conclus. 531, 532, is very large on this; especially where one induces another by affirming what is afterwards found to be false. And however tender the Lords were at the beginning, as to the manner of probation of fraud, yet now being turned so common and familiar, the Lords should take all methods for expiscation. And Balfour can give no rational or so much as a probable account, why I should dispone the half of my small heritage to him, without any visible ground or cause.
Replied for Balfour,—That Anderson's wife, his aunt, having contributed much, by her industry, to the bettering his estate, and having no children, it was but just and reasonable that she and her friends should have a share of the conquest; and that none of the common grounds of law for quarrelling deeds occurred here, such as minority, idiotry, interdiction, &c. but is a contract entered into inter mqjores, scientes, et prudentes; and Rhymer under no legal incapacity, he might dispose of his own as he pleased; and his uncle is a witness to it. And he is ready to depone that he heard a rumour of such a disposition made by Anderson; and nothing can bring him under the compass of fraud, unless they can prove that he forged the story split new, without any ground or rise. Now, dolus non prcesumitur, and obligations arise ex variis causarum figuris, et nil magis congruumjidei humance quam pacta servare. And the hazard of relieving him of all his uncle's debts was an onerous cause, though there had been no more.
The Lords had a great jealousy of the fairness of this bargain; and therefore, before answer to the relevancy, allowed a conjunct probation what was the cause of the said agreement; and if he had any just ground to assert that Anderson was previously denuded by a disposition, to induce Rymer to quit the half of his heritage, to secure him against a non-ens.
