Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION VIII.

Delivery when presumed made, and for whose Behoof.

Sir Robert Chiesly
v.
Thomas Chiesly

Date: 24 July 1701
Case No. No 236.

Found in conformity to Inglis against Boswell, No 236. p. 11567.

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Philiphaugh reported Sir Robert Chiesly late Provost of Edinburgh against Thomas Chiesly now of Dalry. Walter Chiesly of Dalry, in John his eldest son's contract of marriage with Margaret Nicolson, disponing the lands of Dalry to him, reserves a faculty to burden the estate with the sum of 10,000 merks. In 1676, he exercises this faculty, and grants an heritable bond for that sum to Robert Chiesly his youngest son, and at the foot of it there is a note wrote, that he had given sasine to his son propriis manibus; but this was never extended nor registered, and so was null. In 1679, in a transaction betwixt him and his eldest son, the father gives him a full and ample discharge and renunciation of that faculty, and reserved power of burdening the lands with the said 10,000 merks, without taking the least notice of his having exercised the said power in favour of the said Robert. He now pursues Thomas, as representing his father, for payment of that sum with its annualrents. Alleged, I have raised reduction of the bond; 1mo, Because debitor non præsumitur donare; and Walter had given Sir Robert a disposition to all his moveables and executry after his decease, which was worth 100,000 merks; 2do, The bond does not dispense with its non-delivery; and Sir Robert was then a minor, and in familia with his father; and bonds granted to bairns are not presumed to have been delivered ab initio and from their date, as law does in writs granted to strangers; and therefore Walter, any time before delivery, might discharge that faculty; 3tio, Sir Robert being executor to his father, he is liable to warrant his father's discharge and so can never quarrel nor impugn it; for, quem de evictione tenet actio’, eundem agentem repellit exceptio. Answered to the first, If the disposition of the moveables had been after the heritable bond, there might have been some pretence to have pleaded the brocard of debitor non præsumitur; but they were of one date and very compatible, and the one could neither be a revocation nor implement of the other; To the second, The bond is now in his hands, and presumes delivery, unless the defender will prove that he found it among his father's writs after his decease, or that he got it viis et modis, without any fair delivery; and the minute of the sasine taken fortifies its having been originally delivered;—and the father having exhausted his faculty by granting that heritable bond to Robert, there was a jus plene quæsitum to him, which the father could not take away by a discharge elicited from him three years posterior; and though creditors may question deeds done by parents to children in familia, yet his heir may not; and provisions perfected by infeftment to children are no more revocable, and now Sir Robert has several years ago infeft himself on the precept contained in the bond given him by his father; To the third, John being heir to his father præceptione hæreditatis, the obligement of warrandice was heritable, being of a faculty to burden the lands by infeftment, that warrandice did only affect the heir; neither was Sir Robert executor, but confusione tollitur. The Lords repelled the first reason of reduction, on the maxim Non præsumitur gravare hæredem; and as to the second, found Sir Robert behoved to prove this bond was a delivered evident, either to himself or some other for his behoof, prior to the discharge; and that delivery ab initio is not presumed in this circumstantiate case; and that so long as Walter the father kept it in his own hands, he might revoke, alter, or discharge it; and that there was a great difference betwixt bonds granted to children that were minors and in familia, and writs to other extraneous persons. And as to the third reason, the Lords found the eldest son was here creditor by the warrandice; and that Sir Robert, as succeeding to his father's whole executry, was liable in the obligement to warrant the discharge, and consequently could not insist for the 10,000 merks, for that was to quarrel his father's subsequent discharge.

Fol. Dic. v. 1. p. 155. Fountainhall, v. 2. p. 121.