Scottish Court of Session Decisions

Subject_1 CONDITION.
Subject_2 SECT. IV.

Condition, when understood purified. - Condition of “being decerned,” includes decerniture by Decree Arbitral.

Shaw
v.
Laird of Clackmannan

Date: 10 July 1672
Case No. No 44.

A proposal relative to a marriage portion contained this clause, “all which we offer, providing you give a suitable meeting on your part.” Found that this clause was a condition affecting both the declaratory and the promissory part of the offer, and not being performed, the offer was void.

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The deceased Laird of Sauchy being in great burden, did dispone his estate to Clackmannan who married his daughter, and to Tillihidy, and had from them a back-bond or reversion; but thereafter he did subscribe an inventory of his debts, for satisfying whereof this disposition was granted, which being above the worth of his estate, he did grant a discharge of the reversion; thereafter, George Shaw, his apparent heir, having married the daughter of Mr Murray, a minister in England, who had a great estate in Moray, and no sons, Clackmannan and the rest to whom the lands were disponed, wrote a letter to Mr Murray, bearing, that George and his spouse might be infeft in 3000 merks yearly, and that the lands would be worth 40 chalder of victual, and the coal worth L. 10,000 by year, and that the reversion of the estate would be very considerable, and that they should denude themselves of the estate upon payment of the debts; and the last clause of the letter is, ‘All which we offer, providing you give a suitable meeting on your part.’ The said George Shaw pursues Clackmannan who now has the whole right, to count and reckon for the rents of the land and coal, at the rental contained in the letter, and to denude himself upon satisfaction of the debts due after compt and reckoning. The defender alleged absolvitor, Because this letter did only contain a friendly offer to have procured a fortune for the pursuer from his good-father, whereupon nothing followed; and the last clause in the letter bearing an express condition relative to the whole offer, not only is the offer ineffectual, because it was not accepted; but it being expressly conditional, it is void, the condition neither having been fulfilled, nor offered to be fulfilled. The pursuer answered, 1mo, That the last clause in the letter is no condition, but only a motive to induce Mr Murray to give a portion with his daughter, wherein the defenders have no interest, for they were to have their money, whatsoever the portion was, and shall yet have it. 2do, Though that clause could import a condition, yet it can only relate to the promissory part of the letter to denude, but not to the declaratory part, bearing what the rent of the land and coal was; and it cannot be thought that when parties express the truth upon conditions, but that what they asserted is simply true, otherways it had been a cheat to deceive Mr Murray; and the pursuer, though but apparent heir, hath good interest to cause the defender compt and reckon, and to instruct that the apprisings whereto he hath right, are satisfied by intromission; and, as to the discharge of the reversion, it was unwarrantably elicit, and was in trust. The defender replied, That the condition is clearly annexed to the whole offer, seeing it bears, ‘All which we offer,’ which must relate to the whole; and, there is no doubt, but conditions may be annexed both to promises and declarations; for non agebatur, that the defender should bear witness to the truth, but that he should be willing to compt at such a rental, whether it was more or less than the true rental, which he would have been obliged to do if Mr Murray had accepted the offer, and performed the condition; and the defender's kindly offer then, for the recovery of the estate of Sauchy to his good-brother not being accepted, cannot now be made use of to his prejudice, nor doth it import that the discharge of the reversion was in trust; so that the pursuer having no interest, but the lands being irredeemable, not only by expired apprisings, but by his father's disposition and discharge of the reversion, the pursuer cannot, upon that letter, or any other ground, force him to compt, whatever the rent of the land or coal may be.

The Lords having interposed with Clackmannan to give reasonable satisfaction to the pursuer, his good-brother, if the lands were worth more than the sums that were upon it; but finding that they could gain no ground that way, and that the sums were like to be greater then the value of the land, they returned to give answer in jure, and found that the said last clause was a condition affecting both the declaratory and promissory part of the letter, and not being performed, that the offer was void, and therefore assoilzied.

Fol. Dic. v. 1. p. 192. Stair, v. 2. p. 96.