Scottish Court of Session Decisions

Subject_1 BONA FIDE PAYMENT.
Subject_2 SECT. II.

Payment to a Person who has lost his Right; to one who is not the true Creditor; to a Creditor denuded. Bona Fide Payment must be actual and real Payment.

James Thomson
v.
John Moubray

Date: 25 July 1676
Case No. No 24.

Found in conformity with No 16. p. 1786.

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Alexander Frank being heritor of several tenements of land in Edinburgh, which were at first comprised by James Porteous, who, long thereafter, got a wadset of the said lands, for the sum of 2100 merks, and for his relief of a cautionry of 1000 merks for the said Frank: The said Alexander Frank did thereafter obtain a decreet against Porteous, his heir, finding, after count and reckoning, that he was satisfied; but James Thomson having gotten a gift of bastardy, and ultimus bæres, of the said James Porteous, the compriser and wadsetter, and declarator thereupon, did obtain a decreet of removing before the Bailies of Edinburgh, against John Moubray, as tenant and possessor of one of the tenements; who having given in a bill of suspension of the said decreet, it was ordained by the Lords, that both parties should be heard upon the said bill; the reason of suspension was, that the donatar could be in no better case than Porteous himself, whose right was only a comprising and wadset; both which were satisfied and extinguished by a decreet of count and reckoning against Porteous's heir. It being answered, That the service of John Porteous's heir being reduced, no such decreet could militate against the donatar, unless he had been called, or the Lords of Exchequer, Porteous having died bastard, and his estate belonging to the King and his donatar: Whereupon the Lords, before answer, did ordain Thomson, the donatar, to be heard, and to propone what he might have alleged, if he had been compearing in that decreet of count and reckoning. It was then alleged for Thomson, That the decreet was null, and could never have been pronounced if he had been compearing: 1mo, Because Porteous being a bastard, no payment could have been made to any as his apparent heir, seeing his estate belonged to the King as ultimus bæres: 2do, Porteous having not only a right of wadset, but likewise an expired comprising before that decreet, albeit the wadset had been satisfied by intromission or payment yet it being only granted in farther corroboration of the sums contained in the comprising, the legal reversion whereof was expired before full payment, his right became irredeemable, and no payment thereafter could redeem the same. It was answered for Moubray, That he having married the daughter of Alexander Frank, and, by contract, having gotten a right to the whole reversion competent to him against Porteous, that the first allegeance ought to be repelled because the decreet being given against Porteous's eldest son, who was heir served and retoured, any payment made to him was made bona fide, his service not being reduced until long thereafter, and the reduction of his service was by collusion. It was answered to the second, That the contract of wadset was disponed, which did clearly extinguish the comprising, notwithstanding that it did bear in corroboration, seeing these words were only put in ex stylo, and that it was clearly by the reversion of the new wadset, that the whole rights were redeemable, by payment of the sums contained in the new wadset.——The Lords did seriously consider this case, and found as to the first allegeance, that payment being bona fide made to the heir of Porteous, whose service was standing unreduced or quarrelled, Alexander Frank, who had the right of reversion did pay the same bona fide; and so the donatar could only pursue the apparent heir, whose service was reduced; and, as to the right of comprising which was alleged to be expired, they found, that the compriser having accepted of a new wadset, with a reversion, upon payment of the sums therein contained, it was a clear innovation of his right, and did extinguish the comprising as to the legal reversion; so that the sums in the wadset being satisfied, he could not recur to the right of comprising, there being no such thing reserved to him in the new right of wadset.

1676. November 27. This case being again debated upon a bill of suspension of a decreet for mails and duties, the Lords, upon that same ground, did refuse the bill, and found, that the new wadset being conceived with a reversion as said is, did extinguish the legal reversion of the comprising.

Fol. Dic. v. 1. p. 113. Gosford, MS. p. 571. Nos 890. 891.