Scottish Court of Session Decisions

Subject_1 FIAR, ABSOLUTE, LIMITED.
Subject_2 SECT. V.

Clause of Return.

College of Edinburgh
v.
Mortimer, Scot and Wilson

Date: 11 February 1685
Case No. No 30.

A bond for borrowed money was taken to the lender in liferent and her son in fee, with a provision, that in case the son should die without heirs of his body, the sum should return to the lender and her heirs. Found that the son could not assign gratuitously.

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———, Relict of Bailie Calderwood, having taken a bond for 2000 merks from one Scot, bearing the receipt of the money from herself, and payable to her in liferent, and to her son Mr Thomas in fee; with a provision, that in case he deceased without children, the sum should return to her and her heirs; the son mortified the money to the College of Edinburgh, and died without children.

In a competition which arose betwixt the College and the Mother, it was alleged for the College, That the mother was but heir-substitute in fee to her son, and could not quarrel his deed.

Answered; The mother who lent the money, might qualify the fee as she pleased; and the quality being inserted by way of provision, and not by the words ‘which failing,’ the son could not dispose of the same lucrative, whatever might be pleaded that he could do for an onerous cause.

‘The Lords found, that the son had but a qualified fee, and could not mortify the money in prejudice of the provision in favours of his mother.’ It was here alleged, but not proven, that the fee of the money had been formerly secured to the son, without any quality, and that the mother had renewed the bond with it.

Fol. Dic. v. 1. p. 307. Harcarse, (Bonds.) No 200. p. 45. *** P. Falconer reports the same case:

There being a bond granted by Scot of Langhame of 2000 merks, bearing the receipt of money from ——— Mortimer, relict of Bailie Calderwood, and payable to the said Mortimer, for her liferent use, and to ——— Calder-wood her son in fee, with this provision: “That in case the son should die without heirs of his body, the sum should return to ——— Mortimer his mother, and her heirs;” the son before his decease, upon death-bed, assigns to the College of Edinburgh the said sum, and he died without heirs of his body. The College having pursued the debtor for payment of this sum contained in the bond; there is compearance for one Wilson executrix to the said Mortimer the mother; and alleged, That she ought to be preferred, in regard, by the tenor of the bond it appeared, that the money was received from her mother, and albeit her brother was fiar, yet the fee was qualified with the foresaid provision, That failing of heirs of his body, the sum should return to his mother; which provision, he could not evacuate by the foresaid mortification, which was a voluntary deed without an onerous cause. The Lords having examined witnesses ex officio, if the money was originally the son's, and not the mother's; and that not being proven by the depositions of the witnessess, but the contrary, That the money belonged to the mother, they found, that the foresaid provision was not of the nature of a simple substitution, but was of the nature of a provision or condition, and so could not be frustrated by any voluntary deed, without an onerous or necessary cause, and therefore preferred the Executors of the mother to the College.

P. Falconer, No 97. p. 67.