Scottish Court of Session Decisions

Subject_1 BONA ET MALA FIDES.
Subject_2 SECT. II.

Private Knowledge of a Prior Right.

Lawder
v.
Goodwife of Whitekirk

Date: 15 February 1637
Case No. No 6.

An assignation, referred to a formet assignation, declaring that it should be effectual for one half. Found effectual for the whole, as this was evidence that the second assignee knew of the first.

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James Howie having made the Goodwife of Whitekirk assignee to the sum of 300 merks, which he had upon a tenement of land in North Berwick, pertaining to John Lawder; which tenement the said John Lawder thereafter dispones to John Hepburn of East Craig, who uses redemption, and consigns the 300 merks, which the said James Howie had thereupon assigned, as said is, to the Goodwife of Whitekirk. The said John Lawder arrests that 300 merks consigned, and pursues the same to be furthcoming to him, for satisfaction of L. 100 which he acclaimed, as being made assignee pro tanto by the said James Howie; wherein the Goodwife claiming preference for the whole 300 merks, by virtue of her assignation, which she alleged to be prior to John Lawder's assignation, in so far as John Lawder's assignation, albeit it was made upon that same day wherein her assignation was, yet the same bore, and made mention in the body thereof, “That he had assigned that sum of before to her, and willed that her assignation should be effectual for the one half, and his assignation for the other half of the sum;” which he could not do, being denuded of before in her favours, and so confessed in his own assignation, which was as sufficient as an intimation quoad eum, who so knew the same.—And John Lawder alleging, That his assignation ought to take effect, albeit of the tenor foresaid, because the Goodwife of Whitekirk by her back bond, at that same time of the acquiring of the said assignation by her, obliged her to make compt, reckoning, and payment to the said James Howie, at his home-coming from London, whensoever he then pleased; and he having declared his will by this assignation, made of the half of the sum to him, it ought to be found sufficient; and this will he might lawfully make, and effectually, in respect of the back-bond, which evidently declared, that the assignation made to her should be respected only as donatio mortis causa, which was changeable by the maker, and changed by him, as said is.——The Lords preferred the first assignee for the whole sum, in respect that the assignation made to her was pure and simple, and was referred to in Lawder's own assignation, which could not therefore be miskened by him; and the said first assignation being simplex donatio, could not be revoked by the cedent thereafter, notwithstanding of the back-bond given to him by the assignee, which the Lords found made not the assignation to be of the nature of donatio mortis causa; and which back-bond being of the tenor, That she should compt and reckon, and pay to the cedent at his home-coming from London, and that he died before he came home, the said back-bond being restricted to that one condition, the same was found could not receive any further extension, than as she had bound herself by said back-bond; so what he had done before his home-coming ought not to derogate from the said assignation; for the condition of her compting and paying being referred to his home-coming, and he never coming home, that behoved to be esteemed as a condition, that if he came not home, she was not holden to compt; for in law dies incertus pro conditione est; and therefore she was preferred in toto. See Mungal against Steil, Durie, p. 827. voce Husband and Wife; where a bond to pay a sum to the husband and wife, and their heirs, gave the wife no more right than she would have had, albeit her name had not been insert therein, and no mention made of her or her heirs. See Donatio Mortis Causa.

Act. Sibbald. Alt. Forbes. Fol. Dic.v. 1. p. 105. Durie, p. 826.