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Scottish Court of Session Decisions >>
M'Intosh v Rattray. [1711] Mor 8265 (7 November 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor2008265-029.html Cite as:
[1711] Mor 8265
A party who had taken a bond to himself in liferent, to return to the debtor in fee, was found entitled to uplift, if the debitor was vergens ad inopiam; but the money to be re-employed on the same terms.
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The Lord Polton probationer (in the room of Lord Anstruther deceased) reported M'Intosh and Rattray. David Rattray grants to M'Intosh a bond for L. 100, payable to him and his wife in liferent, and failing of them by decease, to return to the said David himself. M'Intosh, the creditor, charges him for payment of the principal sum. Rattray suspends on this reason, that by the conception of the bond he has only right to the annualrent, and not to the principal, which is expressly provided to return to the debtor himself, it having been a donation and gratuity; and for the bygone annualrents, they are all punctually paid up. Answered, That the ignorance of country notaries cannot prejudge his right, Azo having long ago observed, that eorum imperitia aliquando peribit mundus; for it is plain, by the term of payment, viz. Whitsunday I701, the parties designed that I might call for it after that time, else why was it put in? And the substituting of you is a mere destination, that if M'Intosh, the creditor, did not dispose on it in his own lifetime, then it should fall to Rattray, the substitute; and however it runs to me in liferent, yet I am truly fiar of the sum, and have the jus exigendi to uplift it; and you are only an heir of provision to succeed, if I have not otherways disposed on it. Yea of old, in Durie's time, if the first institute survived the term of payment, the Lords found the substitution expired and evanished; and though my Lord Stair, B. 3. T. 5. § 51. says that the posterior decisions have altered this, yet still they find the first creditor fiar. The Lords found the creditor had the power of uplifting, because if he were vergens ad inopiam they had interest to see it better secured for their annualrents; but withal thought they could not frustrate and evacuate the substitution, but behoved to re-employ it again in the same terms as it stands in the first bond.
Fol. Dic. v. 1. p. 549. Fountainhall, v. 2. p. 668.
