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Scottish Court of Session Decisions >>
Douglas v M'Michael. [1629] Mor 5504 (26 February 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor1305504-071.html Cite as:
[1629] Mor 5504
Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XII.
Effect of the death of Debtor or Creditor, before the term of payment, in cases of Bonds heritable by a clause of annualrent.
Douglas v. M'Michael
Date: 26 February 1629 Case No. No 71.
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A bond made at Whitsunday 1627, of this tenor, to be paid at Martinmas 1627, with the annualrent at ten in the hundred, and failing of payment at that time, to pay L. 100 of penalty, and the annualrent thereafter so long as the principal should be unpaid, was found moveable, the creditor having died before the first term of payment, viz. Martinmas 1627, although it was contended it should be heritable, in respect of the express obligement of payment of annualrent from the beginning, and ever after till the payment of the principal sum.
Fol. Dic. v. 1. p. 370. Spottiswood, (Contracts,) p. 66.*** Durie reports the same case:
In an action for delivery of a bond made to the creditor, which bore, the debtor to be obliged to pay the principal sum borrowed by him at the term contained in the bond, and also the annualrent thereof from the term of lending to the said repayment, (for, by the act of Parliament, annualrent could not be taken in hand, but only at the term of payment of the principal sum), and in case of failzie, to pay a certain penalty, together also with the annualrent, ay and while the sum should be repaid; and the creditor dying before the term of payment in the bond, and the obligation being sought to be delivered to the heir of the defunct, the executors alleging that it pertained to them, and not to the heir; the Lord found the bond pertained to the executors, and not to the heir, albeit it bore payment of the annualrent ab initio, and was of the tenor foresaid, the creditor having deceast before the term of payment, whose surviving after the term, and not the clause of paying anualrent for that intervening term, betwixt the term of lending, and the repayment, should only have made the bond to pertain to the heir.
