Edmonstone v Seton

JurisdictionScotland
Judgment Date16 October 1888
Date16 October 1888
Docket NumberNo. 1.
CourtCourt of Session
Court of Session
1st. Division

Lord Kinnear B., Lord President, Lord Mure, Lord Shand, Lord Adam

No. 1.
Edmonstone
and
Seton.

Right in Security Real Burden Obligation ad factum prstandum Obligation to purchase and transfer consols.

Held that a bond and disposition in security binding the granter to purchase and to transfer to the grantee the capital stock or sum of 5000 3 per cent Consolidated Bank Annuities, and until such purchase and transfer to pay to the grantee the interest payable on that amount of stock, was effectual to make these obligations real burdens on the lands conveyed.

By two bonds and dispositions in security, dated in 1849 and 1858 respectively, the Rev. Henry Thomas Lumsden, heritable proprietor of the lands of Guisway or Cushnie in Aberdeenshire, acknowledged to have borrowed, from the trustees of a marriage-settlement between him and his wife in the English form, two sums of 5000 and 3500 respectively 3 per cent Consolidated Bank Annuities then standing in their names as trustees in the books of the Bank of England, which had accordingly been transferred to his name in the books of the bank. After narrating the loan in question, the first of the two deeds proceeded,Therefore I do hereby bind and oblige myself, and my heirs, executors, and representatives whomsoever, at any time during my life or after my death, when required in manner after provided for by the said Sir Archibald Edmonstone, &c. [the trustees] or the survivors or survivor of them, or their or his assigns, or the executors or administrators of such survivor to purchase and transfer, or procure to be transferred in the books of the said Governor and Company of the Bank of England, unto and into the names or name of the said Sir Archibald Edmonstone, &c. or the survivors or survivor of them, or their or his assigns, or the executors or administrators of such survivor, the capital stock or sum of 5000 three pounds per centum Consolidated Bank Annuities, and that upon or within the day or time to be specified in the notice to be given to or left for me in manner after mentioned: As also I do hereby bind and oblige myself and my foresaids from time to time, and at all times hereafter, until the said sum of 5000 three pounds per centum Consolidated Bank Annuities shall be actually so purchased and transferred into the names or name of the said Sir Archibald Edmonstone, &c. or the survivors or survivor of them, or their or his assigns, or the executors or administrators of such survivor as aforesaid, to well and truly pay, or cause to be paid, unto the said Sir Archibald Edmonstone, &c., or the survivors or survivor of them, or their or his foresaids, such sum and sums of money as shall be equal to the interest and dividends which from time to time, until such purchase and transfer as aforesaid shall be actually made, would have accrued due and become payable on or in respect of the said capital stock transferred into my name as aforesaid, if the same had not been so transferred, but had been left standing in the names of the said Sir Archibald Edmonstone, &c. in the said books of the Governor and Company of the Bank of England, and on the respective days and times at which the same interest or dividends would respectively have become due and payable.

In security of these obligations the granter of the deed disponed his estate of Cushnie to the trustees. There was this further provision in the deed:Provided always, as it is also hereby expressly provided and declared, that if I, or my heirs, executors, or...

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