Answers 1769

Nov. 30. 1769. A N S W E R S F O R DONALD M ' L A U C H L AN of offTO���ff � � T O The PET I T ION of J A M E S F I SHER of � �� f � T H E now deceased Lauchlan M'Lauchlan of Innishconnelwas a man of a very weak understanding, totally unac- quainted with business,; and who consumed almost his whole time in the country amusements of fowling and fish- ing; and having intermarried with a near relation of Sir James Smollet of Bonhill, he, of this date, along with his wife, granted a bond of interdiction to Sir James; and failing of him by decease, to Mr George Smollet of Ingliston; which failing, to the heirs succeeding to the said Sir James; and this bond of interdiction was duly pub- lished and recorded in the year 1739. The above measure was the more necessary, that Lauchlan’s fa- ther, who was also a weak man, had some time before been prevailed upon to sell half of his estate to Proved James Fisher of Inverary, the petitioner’s grandfather, who and Lauchlans father had been mar- ried to two sisters. Such being Lauchlan’s disposition as to be the proper object of an interdiction, it is no wonder that he should have contracted debts; and particularly he owed a sum by bill to Dougald Campbell of Ed- derline, upon which a caption had been raised against him in De- cember 1743. At this time Lauchlan stood in the see of the lands of Innishcon- nel and others, at that time about L. 60 Sterling of yearly rent, burdened however with a liferent of the whole to Angus M' Lauch- lan his father, and with an annuity or 300 merks to Jean M'Lauch- lan his mother, in the event of her surviving her husband.When When Lauchlan was in the hands of the messenger, a transaction was entered into betwixt him and Duncan Fisher writer in Inverary, his cousin-german as well as his ordinary doer and manager, the purport of which was, that Mr Fisher should join with him in granting a bond of presentation to Edderline, and that, for his relief, Lauchlan should convey to him his lands and estate. This transaction was carried into execution in the following man- ner: Mr Fisher, of this date, granted a bond of presentation, by which he bound himself to present the person of the said Lauchlan M‘Lauchlan within the tolbooth of Inverary upon the 12th of Janu- ary then next; and in case of failzie, to pay to John Campbell of Clo- chombie, as factor for Edderline, upon the said 12th of January then next, the sum of L. 58: 3: 13/4 Sterling, with L. 10 money foresaid of penalty in case of failzie, together with the annualrent of the said accumulate sum thereafter, while payment; and the said Lauchlan M ‘Lauchlan obliged himself to relieve the said Duncan Fisher of his cautionry for him in the premises, And as Lauchlan was himself altogether unacquainted with busi- ness, and of the execution of writings, and having an unbounded trust and confidence in his own doer Duncan Fisher, the execution of the transaction was no doubt left to him; and accordingly, of the same date, a minute of sale was entered into between the said Dun- can Fisher and Lauchlan M‘Lauchlan, ex facie absolute and irre- deemable, by which, on the one hand, Lauchlan bound himself and his heirs, &c. to grant to Duncan Fisher, his heirs-male and assignees, betwixt and the 1 2th of January next, an absolute and irredeemable disposition, containing procuratory of resignation, and all other clauses necessary, of all and haill the Five Merk land of old extent of Ardconnel, &c. “ Which heritable right and disposition to be grant- ed as aforesaid, the said Lauchlan M'Lauchlan binds and obliges him and his foresaids that the same shall be granted with consent of his interdict ors; and with consent of, and judicially ratified by Anne Smollet his spouse; or that she shall, betwixt and the said 12 th day of January next, sufficiently discharge and renounce any liferent-right, or other right whatsoever she has to the whole or a- ny part of the lands,” &c. And on the other hand, Duncan Fisher, over and above the burden of the fathers liferent and the mother’s annuity, obliged himself, That nows oon the said Lauchlan M‘Lauchlan shall make and grant to him the foresaid heritable right and disposition, with con- sent foresaid, that he the foresaid Duncan Fisher shall make and grant to and in favours of the said Lauchlan M'Lauchlan, a bond “ o r or other sufficient security for the sum of L. 6172 Scots money, bearing annualrent from Whitsunday next, and payable at Mar- tinmas thereafter; which sum, together with the liferent-right af- fecting the said lands in favours of the said Angus and Jean M‘Lauchlans, whereof the said Duncan Fisher becomes bound to relieve the said Lauchlan M'Lauchlan, is hereby declared to be the full, adequate, and agreed value and worth of the lands, mill, and others above disponed.” The foresaid minute of sale was wrote by Alexander Shearer writer in Inverary, a person of very low rank, who earned his bread by writing for a penny the page: And it was witnessed by him, Archi- bald Campbell messenger, and Mr Campbell of Clochombie, who, notwithstanding of what is said in the petition, had not the most re- mote connection with Lauchlan M‘Lauchlan, but on the other hand had all his lifetime been in the greatest intimacy and friendship with Duncan Fisher. And at any rate, it is clear, that he was then pre- sent not as a friend of Lauchlan’s, but as the person who was carry- ing on the diligence against him. However, as a real sale was not intended, at least by Lauchlan, but only a security to Duncan Fisher to be relieved of the foresaid engagement, so the minute of sale was deposited in the hands of Clochombie; and articles of depositation were signed by the parties, and by Clochombie, of the following tenor: “ Whereas Duncan Fisher writer in Inverary has, of this date, gi- ven a bond of presentation for Lauchlan M 'Lauchlan of Innish- connel, for presenting him to John Campbell, deputy-chamberlain of Argyle, within the tolbooth of Inverary, upon the 12th January then next, or then to pay the sum of L. 58: 3: 12/3 Sterling, the amount of the debt for which he was apprehended: And whereas also there is a minute of sale of the lands of Ardconnel and others, pertaining to the said Lauchlan M‘Lauchlan, entered into between him and the said Duncan Fisher, of this date, which is by them both depositate in the hands of the said John Campbell, upon this condition, That in cafe the said Lauchlan M‘Lauclilan does him- self, against the said 12th of January, pay the said sum, and retire the said Duncan Fisher’s bond of presentation, then the said mi- nute of sale is to become void and null; and failing of the said Lauchlan M‘Lauchlan’s paying the said sum on the said 12th Ja- nuary foresaid, then the said minute of sale is to stand and subsi st as fully as it had not been depositate, and the same is to be put in- to the register of the sherif-court of Argyle. In witness whereof, both parties and the said John Campbell have hereto subscribed, 4 '. “ at at Inverary, the 3d December 1742 years, before these witnesses, Archibald Campbell messenger in Inverary, and Alexander Shearer writer there.” As the price stipulated by the foresaid minute of sale was not the one half of the ju st value of the lands; and as a real sale was never intended, at least by Mr M'Lauchlan, so Duncan Fisher, acquiescing in what was understood to be the true intendment of the transaction, did not attempt to take possession of the esta te: He contented him- self with putting the minute into the register, and giving him a charge upon the minute; and after Lauchlan’s death he raised a ge- neral charge, and executed a summons of adjudication against Colin M'Lauchlan, Lauchlan’s brother, but which he thought proper to drop without proceeding farther. On the other hand, he proceeded to personal diligence against Lauchlan, in order to operate his relief for the sums contained in the bond of presentation. He, of this date, obtained decreet against Lauchlan before the Court of Session for payment of the said debt, upon which he raised horning and caption, in virtue of which Lauchlan was apprehended, but was li- berated upon he and the laird of M'Lauchlan granting a bond of presentation; and upon which bond he afterwards, viz. in the year 1746, obtained a decreet against the representatives of the laird of M'Lauchlan. However, James Fisher having succeeded his f ather Duncan in the year upon the death of Angus Duncan’s son, he, in the 1764, being tempted with the bait of getting an estate at less than one third of what it is now worth, and apprehending that the arti- cles of depositation might not then appear, and thereby the real state of the transaction not be discovered, brought an action against the respondent and Duncan M'Lauchlan tailor in Inverary, conclu- ding, that they, as representing the foresaid Lauchlan M'Lauchlan, should be decerned to make up titles, and to denude in terms of the foresaid minute of sale. This action however the petitioner allowed to lie over and sleep; but having wakened the same in the 1768, the respondent was advi- sed to bring a reduction of the foresaid minute of sale, as having been granted by a weak and facile person to his enorm lesion; and when under interdiction, without the content of his interdictors. These mutual processes came before the Lord Elliock Ordinary; and as at this time the respondent was ignorant of the articles of de- positation, fo the interdiction was the chief ground upon which the respondent at first insisted for setting aside the sale. The answer made to this upon the part of the petitioner was, That the lands were sold sold for a full and an adequate price; and that an interdiction is no relevant ground of reduction, without proving lesion; and the Lord Ordinary, of this date, pronounced the following interlocutor: Having considered the foregoing minute of debate, with the writs produced for both parties, in respect the minute of sale for imple- ment of which the original process was brought was an onerous deed and that Donald M'Lauchlan defender does not qualify fraud or lesion at the time the same was executed, therefore repels the reasons of reduction ex capite interdictionis, assoilzies, and de- cerns; and finds the defender Donald M'Lauchlan, as representing L auchlan M'Lauchlan of Innishconnel, is bound to implement the said minute of sale to the pursuer James Fisher, who has right there- to, as heir of the deceased Duncan Fisher the party contracter with Lauchlan M'Lauchlan.” Against the foresaid interlocutor a representation was preferred up- on the part of the now respondent, to which answers were put in upon the part of the petitioner; but before these came to be advised, the respondent, in consequence of a diligence which he had obtained from the Lord Ordinary, recovered the foresaid articles of deposita- tion out of the hands of the sheriff-clerk of Argyle: And the Lord Ordinary having appointed memorials upon the import of this pro- duction, he, upon advisin g thereof, of this date, pronounced the fol- lowing interlocutor: “ The Lord Ordinary having considered the memorial for Donald M'Lauchlan, with the answers made thereto for James Fisher, together with the report of the act and commis- s ion, and writs produced, particularly the note of depositation lodged in the register of the sheriff-court of Argyle, along with the minute of sale for implement of which this process is brought; from which it appears, that no true sale of lands was intended to be made of that minute; but that the same was only intended as a Security to Duncan Fisher, for relief of the obligation he had come under for the said Lauchlan by the bond of presentation, o f even date with the said minute and note of depositation: And, in respect that no claim appears to have been made for implement of the said minute from the year 1 7 4 2, w h e n s ame was entered o f the parties contractors; therefore finds, That Donald M'Lauchlan, now of Innishconnel, is not bound to make over the lands to the pursuer in terms of the said minute of sale; but that it is compe- tent to him, the said Donald, to demand up the said minute, or a t least a discharge and renunciation of the same from the said J ames Fisher, upon the said Donald his making payment to him "of of the debt for which Lauchlan M'Lauchlan was under caption at the time of granting the said minute, and which debt Duncan Fisher was subjected to pay in consequence o f the foresaid bond of presentation.” To this interlocutor his Lordship adhered, upon advising a repre- sentation and answers; and the petition now to be answered re- claims against these interlocutors. The respondent, in answering the petition, shall consider the case as if an absolute sale had been intended; and 2do, He shall consider it as qualified by the articles of depositation, which have been recover- ed, and are in process. In the first place, Your L ordfhips will observe, that the minute of sale at this day continues a personal right. No infeftment ever fol- lowed upon it, nor indeed could follow, as it contained neither pro- curatory nor precept, without obtaining a proper warrant from the seller, or a charter from the superior upon an adjudication in imple- ment. This being the case, it is plain, that the simple cancelling of the minute, or a discharge, or any writing declaring that the par- ties palled from the transaction, would have effectually put an end to it. And if any declaration to that purpose would have been sufficient; and as pacta liberato, relative to a written transaction, are probable by witnesses; and that such a paction, if proved by witnesses, would likewise be sufficient to put an end to the transaction; it is humbly submitted to your Lordships, Whether a transaction of this kind, remaining entirely upon the footing of a personal right, might not have been palled from rebus it factis: And when the seller is allowed to retain the possesio n from the 1 742 downwards, and no step is seri- ously taken by the purchaser for attaining the possession till he wakened the process 1764 in the year 1768; it is humbly submitted, If this is not as strong a declaration by the parties, that they did not intend that this transaction should take place as a real sale, as if it had been express- ly passed from by a solemn communing, or a written agreement to that purpose? At any rate, the long taciturnity upon the part of the sup- posed purchaser, and when the claim is only seriously made upon the part of his heir, it will satisfy your Lordships, that he himself was perfectly convinced that he had no ju st claim to the irredeema- ble property of this estate; and that therefore he was not hardy e- nough to insi st upon the present claim, however it might be found- ed in the strict letter of the deed. The petitioner has endeavoured to make an apology for this taci- turnity. He says, That as the estate was liferented, there was no oc- casion to be in a hurry to force implement of the minute of sale; that that it could not be said that he had derelinquished the transaction, when he gave a charge of horning in the 1744, and raised a general charge, and executed a summons of adjudication in the 1746. But with submission, any steps that were here taken will by no means show, that the purchaser seriously meant to claim the irre- deemable property of this estate; any thing that was done was ve- ry consistent with what was truly the case, viz. that the lands were only conveyed to him in security of his relief of Edderline’s debt. He might think these steps necessary, as taking documents upon his claim; but when he stopt short without going farther, it clearly shows, that he did not mean to assert his right to the irredeemable property of the estate, and to claim the possesi o n thereof according- ly. The apology offered for so long a delay is altogether affected; for al- though Lauchlan’s father had a total liferent of the estate, yet he died in the 1750, and no attempt was made upon the part of the supposed pur- chaser, till this action was brought in the 1764, and which was al- lowed to sleep till the 1768 without any thing being done upon it; nor could the liferent provided to his mother be the reason of the delay, as she died a year before her husband. And be- sides, even although he could not have entered to the uplifting the rents; yet it is imposib le to believe, that any man, if he understood that he had a right to the absolute property of the estate, would have allowed his title to remain upon the footing of a right merely perfo- nal, which might be disappointed by subsequent infeftments, espe- cially when the purchaser admits, that his author was in labouring circumstances: And although an inhibition wasused in the 1744 which might secure his right against future deeds; yet as by the petitioner’s own showing he owed sundry debts, and for several of which adjudications had been led against the estate, the inhibition could not hinder the creditors in these debts to lead adjudications a- gainst the estate, and take infeftments upon them, or upon the adjudi- cations formerly led; and which adjudications, so clothed with in- feftments, would have been preferable to the personal right of the purchaser. But 2do, Supposing that the transaction could not be understood as passed from, and that it had been originally intended as an absolute and irredeemable sale of the estate, the respondent, with submission, apprehends, that in this case there is clear grounds tor reducing and setting it aside, viz. That the seller was at the time under interdic- tion, which was duly published and recorded; and that the sale was made without consent of the interdictors, The The petitioner says, That in this case the sale could not be reduced ex capite interdictionis, because the price was fully adequate and o- nerous. In the first place, The respondent must observe, that it could not be suff cient to support a sale made by an interdicted person without consent of his interdictors, to show that the price was adequate, unlefs the purchafer could likewife fliow that the fale was an ex- pedient meafure for the interdicted perfon: And in this cafe it is humbly thought, that it will be a difficult matter for the petitioner to perfuade your Lordfliips that the prefent fale was an expedient meafure for Mr M‘Lauchlan and his family, when, by the peti- tioners own fhowing, they were thereby ftripped of the eflate, with- out a single sixpence of reversion for their subsi stence; the whole price stipulated being by the minute to be applied to clear the estate of the incumbrances it was burdened with. However, it will be unnecessary to insi st upon that point, as, with submission, there is already in process a clear proof of enorm lesi on; and, if necessary, it could still be proved in the clearest manner by- parole evidence, that the estate would, at the date of the transaction have given double the price stipulated by the minute of sale. The respondent has produced in process a rental of the lands as they stood about the year 1 736, by which they amount to L. 6 0:4: 4 Sterling._ The rent of the first article, viz. of the lands of Ardconnel, is instructed by articles of agreement betwixt Angus M'Lauchlan the father of Lauchlan, and certain of his tenants, in the 1736, and by a receipt granted to one of the tenants for his rent 1736. By these pieces of evidence it is clearly established, that the one-fourth of the lands of Ardconnel were set at L. 6: 7: 6;and the other three quarters, which were possessed by Innishconnel himself, are compu- ted at the same rent. The petitioner disputes the conversion of the casualties as being too high; and he says that there is no evidence of the rent of the other three quarters, which he denies were in the natural possession of lnnishconnel. W ith respect to the conversion of the casualties, there is no room for any argument upon it, because the discharge produced affords sufficient evidence that the casualties were paid for at the rate of the foresaid conversion. And with respect to the other three-fourths of the lands, it is a matter of no consequence whether they were in the natural possession of the heritor or not: For as the rent of one-fourth is clearly instru cted, it must afford at least sufficient preemptive e- vidence that the other three-fourths were set at the same rate, when there there is no proof to the contrary, but mere conjectures, altogether unsupported by evidence. The second article in this rental being the rent of the acre o f Tayna- noch, is instru cted by articles of agreement betwixt Angus M‘Lauch- lan and two of his tenants; from which it appears, that Angus kept the acre o f Taynanoch, with the grass of two cows and ten sheep, and a cow’s grass in the park, and six followers, also his riding horse; and all this is only rated in the rental at L. 1: 7: 6. Your Lordships must be satisfied that this article is greatly under-rated; and so sensib le is the petitioner o f this himself, that he does not object to this article of the rental. The third article, being the rent of the mill of Ardconnel, is in- structed by a tack thereof, entered into betwixt Angus M 'Lauchlan and John M‘Allum in the 1734. The petitioner objects, That the meal is too high converted in the rental, being no less than 12 merks per boll; and that it would ap- pear that the twenty merks in money was paid on account of grass for six cows, a mare, and ten sheep from the farm of Ardconnel; and which therefore cannot come into the rental under this article, as that farm is rentaled by itself. As to the price of the meal, it is well known that there is no place in Scotland where it sells dearer than where the lands in que- stion do lie; and when the tenant by his tack is bound to deliver nine stone for each boll, the respondent is persuaded that your Lord- ships will not think the converfion of 1 2 merks the boll too high. Be- fides, your Lordships will observe, that there is only one article of meal in all this rental, and that too a very inconsiderable one, paid out of the mill; so that stating the meal at the petitioner’s own con- version, it would only make a few shillings of difference. As to the other observation, there is no ju st foundation for it. It does not appear from the tack from whence the miller was to get his pasturage for the cattle: But if he was to get it from the lands of Ardconnel, it will make no difference; for as in that case the rent stated for the lands of Ardconnel was payable even with that burden in favours of the miller, both of the articles fall ju stly to be stated. The fourth article of the rental, being the lands of Coulchonnel, is instructed by a tack granted of two quarters thereof, in the 1732; and it appears from the tack, that the lands paid four goats and four kids more yearly than what is stated in the rental, which, at six shillings the goat, and two shillings the kid, may be valued at L. 1, 12 s. more. The The only objection made to this article of the rental is, That the tack contains only the half of the lands of Coulchonnel, which will not prove that the other half was set at the same rent. But as no evidence is shown to the contrary, it, with submission, must be pre- sumed, that the whole yielded double the rent of what was paid for the one half; and therefore, with submission, until some evi- dence is offered to the contrary, this article of the rental must be held as sufficiently inst r ucted. The fifth article, being the rent of the lands of Portincherrieke, is in- stru cted by a letter under the hand of James Campbell, the father of the present possessor, dated 22d April 1747, mentioning the present rent to be as stated in the rental produced in process, though it is not above one half of what it would let at now. The next article, being L. 1: 7: 8 for the smithy and acre: The re- spondent hitherto has not produced any written voucher ascertaining that article of the rental; but, if neces ary, he is under no difficulty of establishing it by parole evidence. As it is well known to have been set separately from the rest of the estate, res ipsa loquitur, that it cannot be much over-rated when stated at L 1: 7: 8. These articles amount in whole to L. 54: 4: 4 Sterling; and if to this is added the goats and the kids, which appears from the tack itself to have been payable for the lands of Coulchonnel, though omitted to be stated in the foresaid rental, the rent w ill amount to L. 55: 1 6: 4; and this besides the whole services, valued at 1 s. a-day for a man and horse, which may be moderately computed at 6 Sterling yearly. In opposition to this rental of the estate, as it stood about the year 1736, established by evidence so pointed and direct, the petitioner appeals to the rental that was given up in the year 1750, upon occasion of the valuation of the shire of Argyle; from whence it appears, that the free rent at that period was ju st L. 30: 9: 4. But in the f irst place, It is pretty plain, that on occasion of the valuation of the county, proprietors would not be apt to make their rents higher than they truly were; a nd, 2do, It appears that the rental taken up of this estate in the 1 750 referred entirely to what was paid for the years 1747, 1748, and 1749; and it is a thing notour in that country that owing to the rebellion in the 1745, and a famine which happened in that country in the 1746, and which was no doubt partly owing to the total neglect of culture the preceding year, many parts o f that country were waste for some years thereafter, so that for some years after the rebellion gentlemen were glad to take what rent they could get for their lands; and the consequences thereof were felt more severely in this estate than in many others, as Lauchlan himself had had gone into the rebellion and was killed at Culloden, and that his father was then so old as that he was quite unfit for business of any kind. The petitioner says, That if the rent was so high as alledged about the 1736, it is not easy to account why it should not be much higher at this day, than at the date of the valuation in the 1750: But it is not at all surprising why these lands should not have been set near their full value; for after Lauchlan’s father’s death they were very much neglected, owing to a competition that arose for the estate. But if the respondent was to enter into a proof, he could clearly establish, that they would yield now considerably more than what they are stated at even in the rental 1736. The respondent therefore humbly apprehends, that the rental 1 736 must be held as a just and a fa ir rental of the estate, and in that view the lesion is most enormous, as the price stipulated in the minute, besides the burden of the liferents, is no more than eight years purchase of the rent of the estate, without any regard to the woods upon the estate, which are of considerable value. And as to the value of the liferents; as both of the liferenters were then above 70 years of age, and that one of them was only intitled to 300 merks a-year out of the estate, the most that these liferents could be valued at was three or four years purchase; more so, that the price stipulated to be paid by the minute of sale did not exceed twelve or at most thirteen years purchase of the estate, which is not above one half of the sum which they would have given at the period of the transaction, and not above one-third of what the lands would yield now; so that, with submission, there can be no doubt that the present transaction, if considered as an absolute sale of the estate, would fall to be set aside ex capite interdictionis. Indeed, supposin g that no other effect was to be given to this in- terdiction than to be held as evidence of facility, (and it certainly does afford sufficient presumptive evidence of it), there is in this cafe circumstances sufficient for setting aside the transaction, when considered as an absolute sale. The respondent has already observed. That the interdiction is sufficient presumptive evidence of Lauchlan’s imbecillity; and indeed it was a thing so notorious in that country, that the respondent would be at no loss to estab lish it by parole evidence at this day. 2do. It has been already shown, that Lauchlan was most enormly lesed by this transaction, when considered as an absolute sale. And, 3tio, Y o u r Lordships will observe, that the purchaser was Lauchlan’s ordi- nary doer. This fact could likewise be easi ly proved from the sheriff-court books of Argyle; but it is unnecessary, as it is scarcely scarcely denied by the petitioner. And as to Clochomby, the re- spondent does deny that Lauchlan had the moft remote connection with him; but, on the contrary, a very close and intimate friend- ship and connection always subsi sted betwixt him and Duncan Fisher the purchase r: And at any rate it is plain that Clochomby was not there present as the friend of Lauchlan, but as the very person that was distressing him with diligence. What then is the case? This deed is plainly elicited from a facile weak man, to his enorm lesion; and not only is it executed remotis arbitris, without any person upon the part of Lauchlan to give him assi stance or advice, but it is granted while he is in the messenger’s hands, and in favours of his own doer, in whom he would naturally put more than ordinary trust and confidence; and consequently more criminal in him to take any undue advantage, than it would have been in a stranger. These circumstances concurring arc unquestionably sufficient to set aside the transaction. When a deed is elicited from a facile weak man, remotis arbitris, and especially by a person in whom the grant- er naturally fell to put trust and confidence; and when at the same time it does appear, that the weak person was enormly lesed by the transaction, fraud is presumed. There is fr a us in re ips a. The law does presume that the same was unduly obtained by fraud and cir- cumvention; and on that ground a court of law must set it aside. when the same is brought under challenge. But it is unnecessary to insist upon these things; because, sup- posing an absolute sale had been intended by the transaction, the minute of sale, as it stands, is clearly an incomplete deed, and which was binding upon neither party. As the defender hitherto has laid no stress upon the articles of de- positation, so in this branch of the argument he does likewise lay these out of the question; and even in that view he apprehends, that the minute of sale cannot be considered as a completed contract bind- ing upon the parties. Your Lordships will observe, that as the interdiction was at this time duly published and recorded; and as it was well known to Duncan Fisher, I.auchlan’s own doer; so the foresaid minute of sale (after binding and obliging Lauchlan to grant to Duncan Fisher an absolute and irredeemable right to the lands, with all proper clauses), contains the following clause: “ Which heritable right and dispo- sition to be granted aforesaid, the said Lauchlan M'Lauchlan binds and obliges him, and his foresaids, that the same shall be granted with consent of his interdictors, and with consent of and j udicial- “ ly ly ratified by Anne Smollet his spouse; or that she shall betwixt and the said 12th day of January next, sufficiently discharge and renounce any liferent-right whatsoever she has to the whole or a- ny part of the lands,” &c. “ For which causes, and on the other part, the said Duncan Fisher binds and obliges him, h is heirs and successors, that the said Lauchlan M ‘Lauchlan shall make and grant to him the foresaid heritable right and disposition, with consent fores aid, that he, the foresaid Duncan Fisher, shall make and grant to and in fa- vours of the said Lauchlan M‘Lauchlan a bond, or other s ufficient security, for the sum of L. 6172 Scots money, bearing annualrent from Whitsunday next, and payable at Martinmas thereafter.” Upon this contract it is observable, that it is clearly made a con- dition of the obligation which Duncan Fisher had come under to pay or grant security for the price, that Lauchlan M ’Lauchlan should grant to him an heritable disposition, with consent both of his wife and of his interdictors. It is clear as the light of day, that until such disposition was granted by Lauchlan with consent foresaid, Duncan Fisher could not be made liable for the price. I f Lauchlan had been inclined to hold the bargain, and the other had wanted to get free of it; and if they had accordingly brought an action a- gainst Fisher, and had offered a disposition from himself, it is plain that Fisher would not have been bound to accept of it. It would have been a good defence to him, that it was an express condition of the obligation which he had come under for payment of the price, that Lauchlan should grant a disposition with consent of his wife and in- terdictors, and that he had not procured their consent. The petitioner surely will not pretend to maintain, that a contract can be sustained, where a person interdicted is bound, and the other party contracting is left at liberty. Such an inequality the law will not permit; it would imply lesion with a vengeance. A person who contracts with a minor, or person interdicted, may, stand bound, and yet it may be competent to the minor, or person interdicted, to set aside the contract upon the head of lesion; but it is impossible that a minor, or person interdicted, should remain bound while the other party is left at liberty: And as in this case, the contract could not be binding upon Duncan Fisher until the consent of Lauchlan’s inter- dictors, & c. was obtained; so till then it was an incomplete deed, and binding upon neither party. The respondent therefore does humbly apprehend, that although the articles of depositation had never existed, but that the minute had had been delivered to the purchaser the moment it was executed, that it cannot be sustained by Lauchlan or his representatives, both in respect that it was reducible upon the grounds already dated, and as being in itse lf an incompleted transaction, and where something was wanting to render it binding upon the parties. But, 2do, When the articles of depositation are taken into the question and duly considered, it must, with submision, from thence appear, that the transaction cannot be viewed as an absolute sale; but that no more was thereby intended, than a security to F isher for relief of the obligation he had come under by the bond of presenta- tion. T he articles of dispofitation are of themselves real evidence that Lauchlan M' Lauchlan had no intention to fell his estate. I f a sale had been intended by him, the minute fell to have been delivered the moment it was executed: But when your Lordships see that it is deposited in the hands of a third party, under this express condition, That it is to be null and void in case Duncan Fisher should, betwixt and the day therein specified, be relieved of the obligation he came under by the bond of presentation; it proves to a demonstration, that Lauch- lan did not mean to part with his lands; that a sale was not intended; that it was not a free act upon his part; and that upon the supposition that it was understood by the parties that the minute did import an abfolute fale, it is plain that Lauchlan was drove to it by necessity, to avoid his imprisonment; that Duncan Fisher, taking advantage of his situation while in the hands of the messenger, had refused to re- lieve him upon any other terms than quitting his estate; and that Lauchlan, willing to submit to any thing rather than go to prison, had agreed to these terms. In this view of the case, supposing that the contract should be considered as an absolute sale meant and in- tended by the parties, the respondent apprehends that the same would be reducible, as having been extorted from him while in the hands of the messenger v i et metu carceris. It is plain, that nothing more was meant or intended by Lauchlan than to procure his liber- ation. In this view, no more was necessary than to grant a proper security to his cautioner to the amount of the sum for which he be- came bound; and if the deed had been confined to that only, it would have been unexceptionable. But when advantage is taken of a person's situation when under diligence; and when a deed is taken importing a great deal more than the exigencies of the case did re- quire, and which it appears the party, if at liberty, would not have submitted to, and of which the articles of depositation is in this casea clear proof; the respondent will beg leave to consider it as a clear case, case, that such a deed would fall to be set aside, as not being the free act and deed of the party, but as having been extorted vi et metu carceris. But laying this ground of reduction out of the question, the re- spondent apprehends that there is another clear ground in law upon which the respondent must be freed of the foresaid minute of sale. The pactum legis commissoriæ in pignoribus is clearly reprobated by the law of Scotland. The law does most ju stly consider it as an undue advantage taken by the creditor of his debtor, who, in order to pro- cure money to relieve him in his straits, will submit to conditions which, if left to his own free choice, he would not have submitted to; and therefore the law does consider, that i f the creditor gets all which, according to the true spirit of the contract, he was intitled to, he in ju stice and equity can demand no more; and he is not to forfeit the debtor of his property, because he did not st r ictly com- ply with conditions which were foreign to the nature of the tran- saction betwixt them. It has already been frequently observed, that in the present cafe, a real sale was a thing which Lauchlan M'L auchlan never intended. The minute in question was entered into in no other view than as a secu- rity to Fisher for his relief of the obligation he came under, and in the expectation that, before the term specified in the articles of depo- sitation,he would be able to redeem his lands by payment of the mo- ney for which Fisher had become engaged; and as no more was e- ver intended by Lauchlan in entering into the foresaid transaction, than that his cautioner should be indemnified, and which the re- spondent is willing to do in the most ample manner, he, in equity and ju stice, is intitled to demand no more. It is plain, that even although the sale were to take place, yet the petitioner would be intitled to be fully indemnified of the da- mage sustained by the cautionry obligation which his predecessor came under; and therefore supposing that the sale was to be held good, in respect that Fisher had not been relieved of his cautionry at the precise time appointed, it would be clearly a penal forfeiture upon the debtor, when over and above he behoved still fully to in- demnify his cautioner. This condition is therefore clearly of the nature of the pactum legis comimissoriæ in pignoribus, which is reprobate in law, and against which the debtor is "always in equity reponed, until the redemption is foreclosed by a formal decreet of declara- tor. If Duncan Fisher had, upon the 13th of January, brought an ac- tion against Lauchlan M'L auchlan, to have it found and declared that- that he had no right to the lands, in respect he had not been relie- ved of his cautionry within the time limited by the agreement of parties, it is impossible to doubt, that if Lauchlan had then offered payment of his money, he would have been affoilzied from the decla- rator, and the minute of sale would have been ordered to be deliver- ed up to him. It would have been considered as unjust to have forfeit- ed the debtor of his lands, contrary to what he originally meant or in- tended, because he had not strictly complied with a condition which the creditor ought not to have imposed, when, at the same time, he was willing fully to indemnify his creditor, which was all that in equity or ju stice he was intitled to demand; and if this would have been your Lordships decision if the question had occurred recently after the elapse of the time, surely the petitioner’s plea does not de- serve to be viewed in a more favourable light, because, from a con- sciousness of the undue advantage that would thereby be taken of the respondent and his predecessor, he delayed to insi st upon the claim for the space of 26 years, so that it was truly understood to have been given up and departed from. The decisions mentioned in the petition have no sim ilarity to the present question. In all these cases the judgment is laid upon this ground, That the intendment of the transaction was a fair sale, for a ju st and adequate price, but where, at the desire of the sel- ler, a light of redemption within a limited time was adjected. In such cases, the right of reversion is juris strictissimi. There is no rea- son either in law or in equity, why, when a real sale was truly in- tended, the property of the purchaser should remain in a state of un- certainty longer than was covenanted: On the contrary, it is high- ly equitable, that if the terms of the reversion were not strictly com- plied with, that the right of redemption should be foreclosed; and the consequence of it only is, to give full effect to the sale, which was the original intendment of parties. Whereas, in the present case, it is clear from the articles of depo- sitation that a sale was not intended by Lauchlan M‘Lauchlan. It appears, that nothing w as more remote from his intention than to sell his estate, that he wanted above all things to keep it, if he posib ly could; and that he had been only forced to submit to the contract’s being conceived in these terms, because he could not o- therwise procure Duncan Fisher’s credit to relieve him from the di- stre ss he was then in. It clearly appears, that it wa s originally in- tended that Duncan Fisher should have no other interest in the trans- action than that he should be relieved of his engagement; and ac- cordingly cordingly it is expressly declared, That if he was so relieved within the time therein limited, the contract of sale should be null and void. The articles of depositation an d th e minute of sale are clearly partes ejus dem negotii. The minute of sale must be qualified be the articles, and must have precisely the same effect as if the condition therein contained had been insert in gremio o f the minute; and when so qua- lified, it is clearly o f the nature o f the pactum legis commissoriæ in pig- noribus, in which case the irritancy is purgeable until the equity of redemption is foreclosed by a formal decreet o f declarator. The petitioner says that these articles of depositation were most ac- cidentally preserved, and that if they had not appeared, there could have been no pretence for this plea. In the first place, This circumstance goes a great length to prove the first point mentioned in the answers, viz. T h a t th is tra n s- action had been departed from by the parties, and that therefore these articles were no longer considered as a paper of any importance. I f otherwise, it will prove what was truly the case, That Lauchlan, the person interested in these articles of depositation, was a por weak creature, very unfit for the management of busines of any kind. And, at any rate, the farthest that it can go is to prove this proposi- tion, That a ju st cause may be lost for want o f evidence; and, thatwher the one party loses his evidents, the other party, if he has noconscience, may rep from he acident a benefit which he was not intitled to. The respondent will not detain your Lordships longer: He appre- hends that the Lord Ordinary's interlocutor is clearly founded both in law and in justice, and he is humbly persuaded that your lord- ships can have no sort of difficulty to refuse the petition, and to ad- here. In respect whereof, &c. ROB. M'QUEEN.