Scottish Court of Session Decisions

Subject_1 REGISTRATION.

Bruce
v.
Hepburn

Date: 6 January 1681
Case No. No 35.

A discharge of a clause in a bond, whereby a sum was lent by a father, and taken to the son in fee, with power to the father, during his lifetime, to dispone, and on which bond, infeftment followed, was found not to require registration.

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Mary Bruce being provided to a sum due by a bond granted by Sir James Keith, to umquhile Dugald M'Pherson and his Spouse in liferent, and to John M'Pherson their son in fee, containing a clause with power to Dugald to uplift and dispose of the sum during his life, at his pleasure; upon this bond there was infeftment of annualrent; and Mary Bruce, relict of John M'Pherson, pursuing thereupon, compearance was made for Patrick Hepburn, who produced a disposition of this right from Dugald M'Pherson, and craved preference in respect of the clause in the bond, whereby Dugald had power to dispone. It was answered, That there is a discharge produced by Dugald in favours of John his son of that clause prior to Patrick's disposition. It was replied, Non relevat, unless the discharge had been registrated in the register of sasines and reversions, for this clause being an infeftment, it could be no otherways evacuated against singular successors, but by registration in the register of sasines. It was duplied, That the act of Parliament for registration of sasines and reversions, is only extended to bonds for reversions and discharges thereof, and assignations thereto; but this is only a personal provision, therefore it may be discharged effectually, without registration; likeas it was registrated in the ordinary register, and was granted before Mary Bruce was married to M'Pherson.

The Lords sustained the discharge; and found no necessity of registration thereof.

Fol. Dic. v. 2. p. 330. Stair, v. 2. p. 826. *** Fountainhall reports other particulars of this case:

1681. February 10.—Dougal M'Pherson disponed the fee of his estate to his son, with a faculty to alter. Thereafter he dispones these lands to Black-Castle for onerous causes; upon which Patrick seeks reduction of the son's right. Alleged, 1mo, He had a discharge of the faculty from his father before Patrick's disposition. The Lords inclined to find this discharge null and fraudulent, as inter conjunctissimas personas, on the act 1621. 2do, Alleged, Dougal the father had not exerted his reserved faculty, and so the son's right stood unrevoked. Answered, It was tacitly altered by the father, in so far as he had disponed all right he had to the said lands. Replied, He had not mentioned his faculty, and so was not habili modo denuded of it. This being reported, “the Lords found he had not, in these general words, disponed the reserved faculty, but only his right of liferent.” At which interlocutor many wondered.

Fountainhall, v. 1. p. 129.