Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION IX.

Rights when presumed simulate.
Subject_3 SECT. II.

Gift of Escheat, when presumed simulate.

Jaffray
v.
Jaffray

Date: 4 December 1669
Case No. No 260.

A son being donatar to his father's escheat, and suffering him to possess for less than a year, not found to make his gift null.

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John Jaffray of Delspre having obtained a gift of his brother's escheat, and thereupon pursuing a declarator, compearance was made for Doctor Jaffray, son to the rebel, who craved preference, as having a prior gift. It was alleged for the pursuer, That the Doctor's gift was simulate, being obtained by his father's moyen, whom he suffered to remain in possession, and to whom he had given back-bond to dispone the said gift to his behoof. The Lordsfound, That seeing the Doctor had given back-bond to the Exchequer that he should only make use of the gift in so far as he was a true creditor to his father, that the procuring of the gift by the father's moyen and upon his charges, was only probable scripto vel juramento; as likewise, the giving of a back-bond to his father: But as for that part of the allegeance, that he had suffered him to remain in possession, seeing there had not intervened a year betwixt the gift and the intenting of this declarator, the Lords would not sustain the same, specially the son having intented a special declarator, wherein he declared he was ready to insist.

Fol. Dic. v. 2. p. 157. Gosford, MS. No 210. p. 84. *** Stair reports this case:

John Jaffray, late Provost of Aberdeen, pursues a declarator of the escheat and liferent of Alexander Jaffray his brother. Compearance is made for Doctor Jaffray, son to the rebel, who produced a prior gift, with general and special declarator, and alleges, No declarator at the pursuer's instance upon this posterior gift, because the right is fully established in his person, by the prior gift and declarators. The pursuer answered, First, That the Doctor's gift is simulate to the rebel's behoof, and so accresced to the pursuer; which appears from these evidences; 1mo, That the Doctor is the rebel's own son; 2do, That it is retenta possessione, the Doctor having suffered his father to possess for many years; 3tio, It was offered to be proved,per membra curiæ of the Exchequer, that the gift was purchased by the rebel's means and moyen; and severally, it was offered to be proved by the Doctor's and his father's oath conjunctim, that he had given a back-bond, declaring the gift to be to his father's behoof. It was answered for the Doctor, to the first, That the grounds of simulation were no way relevant; for albeit be was the rebel's son, yet he had means of his own, and was not in his family; and albeit he were not eager to put his father out of possession of his house and lands, yet his continuance of possession is not relevant, unless it had been to his death, or for a longer time; but any delay that was is because it is but of late that the Doctor hath obtained special declarator, till which he was not in capacity to discontinue his father's possession; neither can members of Court be admitted to prove that the father wared out the expense and procured the gift, because the Doctor, at the passing of the gift, gave a back-bond, that he being satisfied of the debts due to him and the expenses thereof, there should be place for the rebel's creditors; and did make faith at the passing of the gift that it was to his own behoof, after which no witnesses can be admitted against him, nor any other presumptive probation of the simulation of the gift.

Which the Lords found relevant; and found also the pursuer's reply upon the back-bond alleged granted by the Doctor to his father, relevant to be proved by the Doctor's oath only. See Proof.

Stair, v. 1. p. 655.