Ross v Clayton
| Jurisdiction | Scotland |
| Judge | Ld. Cringletie |
| Judgment Date | 12 November 1824 |
| Court | Court of Session (Inner House - Second Division) |
| Docket Number | No. 198. |
| Date | 12 November 1824 |
Ld. Cringletie.
Heir and Executor.—
The late George Mackenzie, in 1777, granted to Glover, in security of a loan of L. 10,000, an heritable bond over his estate of Netherwood, payable in August 1778. Mackenzie, shortly before his death, disponed these lands, and all his property, to trustees, who afterwards sold them to the late Mr Lowthian, a principal creditor of Mackenzie's, in consideration of his becoming bound to liquidate all Mackenzie's debts and obligations. The disposition of Netherwood declared, ‘that Lowthian has satisfied us (the trustees) anent payment of the stipulated price, and that he was to take upon himself the payment of the whole heritable debts affecting the lands and estate of Netherwood.’ These debts were, however, not mentioned in the sasine. Lowthian further executed a discharge in favour of the trustees, obliging himself and his heirs to free and relieve them of all obligations, &c. under the trust-deed; and, in 1782, he granted to Glover a bond of corroboration of his debt of L. 10,000, which, after narrating the heritable bond by Mackenzie, proceeds: ‘And seeing that I did some time ago purchase the said lands and others, and that the said Richard Glover has agreed to supersede payment of the said principal sum of L. 10,000 to the term of payment after mentioned, upon condition of my granting the obligation under written: Therefore wit ye me, in corroboration of the said bond and infeftment following thereon, and without hurt or prejudice thereto, sed accumulando jura juribus, to be bound, as I hereby bind and oblige me, my heirs, executors, &c., to content and pay to the said Richard Glover, &c. the foresaid principal sum of L. 10,000,’ &c. Lowthian having died, leaving this debt unpaid, mutual actions of declarator were raised, to have it determined whether it was payable by his heirs or his executors. The Lord Ordinary assoilzied the executors,1 and decerned against the heirs.
The Court adhered.1
A purchaser of an estate granted a bond of corroboration of an heritable bond over the estate (the price having been beforehand discharged on condition of his assuming this debt); held, in a question with his executors, that though not mentioned in the infeftment, it fell on the heir.
1 In refusing a representation his Lordship assigned these reasons:—‘There can be no sort of doubt of the principles of law by which this case...
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