Scottish Court of Session Decisions

Subject_1 DEATH-BED.
Subject_2 SECT. VII.

Against what Deeds the Law of Death-bed Strikes.

Mr Robert Darling, Minister at Eues Kirk,
v.
Mr John Hay, Son to Mr John Hay, Parson of Peebles

Date: 18 January 1709
Case No. No 45.

An heritable bond being granted on death-bed, in corroboration of a prior bond for the same sum, which prior one carried no obligement to grant further security, the Lords, in a competition betwixt an adjudger and this infefter, considered, that though such a bond would not subsist against an inhibiter, unless there had been a previous obligation to grant it; yet that such privilege was not competent to the heir or his creditor; and therefore preferred the annualrenter.

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In a competition for the rents of a tenement in Linlithgow, belonging to the deceased Humphrey Welsh, betwixt Mr Robert Darling, who had adjudged the same from the heritable apparent heir, and Mr John Hay, who stood infeft upon an heritable bond granted to him by Mr Welsh on death-bed, corroborating a former personal bond granted in liege poustie; Mr Darling having repeated a reduction of the said heritable bond ex capite lecti, the Lords repelled the reason of reduction, in respect of the antecedent onerous cause; albeit it was alleged for Mr Darling, That the anterior personal bond was no obligation upon the debtor to grant an heritable bond of corroboration, whereby the heir was cut off from getting relief of that debt out of the executry; and persons on death-bed could not prejudice their heirs.

Fol. Dic. v. 1. p. 214. Forbes, p. 300. *** Fountainhall reports the same case:

Mr John Hay, and Mr Robert Darling competing for the rents of some lands belonging to Humphrey Welsh, their debtor;—Hay is infeft on an heritable bond. Darling is an adjudger, who objects against Hay's right that it is null, being granted when he was in lecto et agens in extremis, and therefore signed by two notaries mentioning his sickness, and he died shortly after; and as the heir might quarrel it, so can his creditors, as was found Balmerino contra Lady Couper, voce Proof.—Answered, Ought to be repelled, because the heritable bond, though granted on death-bed, yet depended on an antecedent onerous cause, being only a corroboration of a prior bond for the same individual sum; and though a creditor who had inhibited could reduce it, yet the heir can never be allowed to do so, because it depended on an onerous cause ab ante. It is true, in the mutual relief betwixt the granter's heir and executor, it is competent for the heir to say, this debt cannot burden my heritage till the executry be exhausted, and it must, primo loco, affect the moveables; but quoad the creditor, both heir and executor, were equally liable to him.——The Lords considered such a bond would not subsist against an inhibiter, unless there had been a previous specific obligation to grant it, but that was not competent to the heir, where it was supported by a clear bond for onerous causes, and granted in liege poustie; and therefore preferred Hay, the annualrenter. There was likewise a nullity objected against Darling's adjudication, that it did not bear the executions of the special charge to have been produced; but they being now in the clerk's hands, the Lords did not much regard this nullity; neither was it needful, seeing the preference stood an the first point.

Fountainhall, v. 2. p. 482.