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James Thomson v William Pagan. [1781] Mor 8985 (3 July 1781)
URL: http://www.bailii.org/scot/cases/ScotCS/1781/Mor218985-107.html Cite as:
[1781] Mor 8985
Deeds in minority when ipso jure null, when requiring a restitutio in integrum.
James Thomson v. William Pagan
Date: 3 July 1781 Case No. No 107.
Deeds granted by a minor who has no curators, subsist till set aside in a proper action, and that action cannot be brought after the quadrienniuum utile is expired; but deeds granted by a minor, having curators, without their consent, are ipso jure null, and to them, the quadriennium utile does not apply.
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James Thomson, a minor, granted a receipt, along with his father, for two bills, which they became bound to give back entire, or otherwise to pay the contents to William Pagan the original holder of them. The bills were delived to the father, who afterwards became insolvent; and Pagan, at the distance of ten or twelve years, brought an action against the son for payment, or re-delivery. He again brought a reduction of the debt, ex capite minorennitatis, in which it was
Pleaded for Pagan; That the action was incompetent, as not having been brought within the quadriennium utile; Erskine, B. 1. Tit. 7. § 35.
Answered; A distinction should be made between deeds which are ipso jure null, and deeds which are valid till cut down by a rescissory action.
Of this last kind are deeds granted by a minor who has no curators; or by one having curators, with their consent. These subsist till set aside in a proper action; and that action cannot be brought after the quadriennium utile is expired.
But, where deeds are granted by a minor, having curators, without their consent, there is no occasion for a rescissory action. They are ipso jure null. The quadriennium utile does not apply; and the exception arising from the minority of the granter need not be pleaded, till he finds it necessary to defend himself against the consequences of his imprudence.
This distinction we have borrowed from the Roman law; and it is adopted by all our lawyers, particularly by Lord Bankton, B. 1. tit. 7. § 88.
In the present case, the pursuer was certainly under the legal curatory of his father. But no curator can be auctor iu rem suam; and, therefore, his consent to the deed in question, of which he himself was to reap the whole advantage, was the same as if no consent whatever had been interposed.
As the deed was clearly in favour of the father, who could not be actor in rem suam, the Court adhered to the judgment of the Lord Ordinary, “sustaining the reasons of reduction.”
Lord Ordinary, Kennet.Act. Cha. Hay.Alt. D. Armstrong.Clerk, Colquhoun.
Fol. Dic. v. 4. p. 7. Fac. Col. No 64. p. 104.
