Scottish Court of Session Decisions

Subject_1 HOMOLOGATION.
Subject_2 SECT. VI.

Consent not presumed, when the Deed can be ascribed to another Cause.

Mudie
v.
M'Intosh

Date: 14 December 1675
Case No. No 72.

Homologation of a bond granted by a minor, not inferred by allowing to a tenant after majority, annualrent thereof, paid by the tenant to the creditor.

Click here to view a pdf copy of this documet : PDF Copy

James Mudie having granted bond of 1200 merks in favours of Alexander M'Intosh and his children, he raiseth reduction upon minority. The defender alleged homologation of the bond after his majority, by an account with his tenant, whereby he allows to the tenant some annualrents paid to the defender, which did homologate the bond granted in his minority.

The Lords repelled the defence, and found it no homologation, because the pursuer might have allowed to his tenant, for eschewing of double payment, that which he did not approve.

Fol. Dic. v. 1. p. 381. Stair, v. 2. p. 380. *** Gosford reports the same case:

James Mudie of Arbeckie being charged upon his bond granted to Alexander M'Intosh and his children for the sum of 1200 merks, did suspend, and intent reduction, upon this reason, that he was minor, and the said Alexander one of his tutors, when he granted that bond, for no sums of money applied to his use, and so ought to be reduced upon minority and lesion. It was answered, That the suspender could not quarrel the bond, because it was offered to be proved, that he had given order to his own tenant for payment of two years annualrent of the said sum, and, after majority, had granted a full discharge to his tenant of all that he could crave of him, there being a special article of the said account bearing payment of these annualrents, which was an homologation of the bond, and by our law did incapacitate the minor ever to reduce the bond thereafter, which hath been the constant practice. It was replied, That the allowance of the payment of the annualrent being only to Arbeckie's own tenant, whom he did know to have truly paid the same, and whom in conscience he could not pursue for repayment, the charger could not crave benefit thereby to preclude the suspender from reducing the bond upon minority and lesion, who had done no deeds by payment of annualrents himself, or granting any corroboration of the said bond after majority. It was duplied, That in law, all deeds of homologation, whether they be direct or indirect, or by consequence, are sufficient to secure the debtor against minority, that he can never quarrel or reduce the said bond; so that it is equivalent whether the suspender did pay the same himself, or ordered or allowed his chamberlain to make payment after his majority.——The Lords did sustain the reduction, notwithstanding of the alleged homologation, unless the charger could offer to prove, by the suspender's oath, or by writ, that, after majority, he gave order to his tenant for payment of the said annualrents; for they found, that there was a great difference betwixt allowing to the tenant his payment, and his own making payment after majority, seeing he might, out of favour, secure his tenant, and grant him a discharge, which did not preclude him to reduce a bond granted by him in his minority to his hurt and lesion, unless he had done some direct deed in favours of the creditor.

Gosford, MS. No 818. p. 515.