Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. VI.

Bonds with Clauses for Annualrent, before the act 1661.

Porteous
v.
Veitch and Hay

Date: 7 December 1627
Case No. No 33.

A bond bearing a sum to be paid at a term, and a certain sum of annualrent from the time of borrowing to the time of payment, and bearing no clause of payment of annualrent thereafter, found to be moveable.

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In a suspension betwixt Porteous and Veitch and Hay anent the employment of a sum to the use of the relict, who was appointed by her umquhile husband, to be provided to her liferent thereof, the Lords found, That the heir, who was only charged in this process, would get his relief against the executors, upon the moveable gear of the defunct, who was obliged, and that the executor would be obliged to give monies to be employed; and that facts of that nature, viz. for employment upon annualrent yearly, were prestable by executors. It is here to be considered, when such sums are employed by executors to the use of liferenters, to whom the same shall pertain, after the liferenter's decease, whether to the heir of the defunct, being obliged to employ the same to the relict for her liferent, and to his heirs thereafter, or to the executors, the sum being first moveable, and so which should have pertained to them; and if the executors, by the said employment, be for ever excluded from all right thereto, as it appears they are. In this process also the Lords found, That a bond bearing a sum to be paid at the term therein contained, with so much for the annualrent thereof from the time of the borrowing to the time of payment; and bearing no other clause of payment of annualrent thereafter, not to be an heritable bond, but to be moveable, and to pertain to the executors, and to come under testament.

December 13.—In a suspension betwixt Veitch and Hay, the relict having charged the heir to her husband to employ a sum to her in liferent, conform to her husband's bond to that effect, as is noted here, 7th December 1627, the heir alleging that the husband having in his lifetime employed a greater sum to himself, and to the charger his wife in liferent; and since his decease, she and the executor uplifting the same, albeit the same was a moveable bond, yet seeing she had uplifted as much as this sum, which she now craves to be employed, she being so full handed, she cannot come upon the heir, but ought to make that, wherewith she hath intromitted herself, furthcoming for the employment craved by her against the heir, this reason was sustained, and the Lords found, That the relict and the executor having uplifted as much of a moveable bond as would serve for the employment craved, that it should be applied by the relict for satisfying the employment acclaimed, seeing the heir would have his relief thereof against the executors, albeit sentence were given against the heir in favour of the relict; which sentence the Lords found ought not to pass against him, and to put him thereafter to seek his relief against the executor, seeing herself was full handed, as said is, of as much as this would extend to, which is now acclaimed; and if she sustained any prejudice, as that the employment foresaid hereby came off her own half of the moveables, which befel to her by her husband's decease, whereas the said employment should come off the whole moveables, and not off her half allenarly;—— The Lords found, That the relict might have her recourse against the executors, that the said employment might be made of the whole moveables, and not of the relict's half intromitted with by her allenarly.

Act. Hope & Stuart. Alt. Burnet & Nicolson. Clerk, Scot. Fol. Dic. v. 1. p. 366. Durie, p. 319. & 321.