Tweedale — Answers, 19 Feb 1772 (Box 2)

Untitled February 19. 1772. A N S W E R S F O R 1 9.72l a t 77eBr7 late Brewer in Mid-Calder; T O T H E P E T IT IO N o f wB i 7n Me i 9 dnl9 d Farmer at Nether Williamston. T HE respondent, for some years, carried on the busin e ss o f a brewer at Mid-Calder; but, being o f a humane and easy temper, he was unwarily induced to become cautioner for seve- ral persons, whose debts he was obliged to pay, and he also sustained several losses by bad debtors o f his own; in consequence whereof, his affairs went into disorder, and he was obliged to give up business. In the course o f his trade, he had contracted a debt to the pe- titioner for a parcel o f barley, and had granted his bill for the same. He also stood bound to him as cautioner for another debt, amounting both, with the interest due thereon at Whitsunday 1766, to L. 49 Sterling; and, Mr Edmonston being very urgent for payment o f these debts, the respondent resolved to do him all all manner o f justice, by conveying to him the only subject which he had in the world, being a tenement of houses at Mid- Calder. But, as the houses he was thus to convey were a pater- nal inheritance, he was loth to dispose of them absolutely. It was therefore agreed betwixt the petitioner and him, that, payment o f the debt, he should grant him a disposition to these houses, with an assignation to the maills and duties: But, as the houses yielded o f yearly rent about seven or eight pounds Ster- ling, and were worth more than double the sum which the re- spondent was indebted to the petitioner, there was a clause o f reversion inserted in the deed, declaring them redeemable by payment o f the sums which should, at the time o f redemption, remain unextinguished o f the L. 49 and interest thereof, for payment o f which the respondent had thus disponed his subjects to Mr Edmonston. The disposition subjoined to the petition was accordingly drawn out by Mr Edmonston ’s own man o f business, at his de- sire, and subscribed by the respondent; and it is material to ob- serve, that the former grounds of debt were discharged and de- livered up at the time this deed was executed. After Mr Edmonston had thus secured the possession o f these subjects, and was infeft therein, he began to w ish that the sub- jects had been absolutely disponed to him, and to form plans for obliging the respondent to abandon his right o f reversion; and, in order to effectuate this design o f acquiring an absolute dispo- sition, he resolved to put the respondent to every hardship which the law would allow. Though, as your Lordships have already heard, the rent o f the subjects conveyed were three times as much as would pay the interest o f the money; yet, the respondent being in posses- sion o f one o f the houses, whereof the rent was below forty shillings, Mr Edmonston thought proper to bring an action o f removing against him before the sheriff o f Edinburgh; and, in consequence o f this action, the respondent and a small family were turned to the door. To this the respondent behoved to submit; submit; Mr Edmonston had a title to make this use of his pro- perty, and the respondent had no title to oppose it. This scheme, however, failing o f the desired success, Mr Ed- monston brought a second action before the sheriff, concluding for repayment o f the purchase-money, with interest, and the expences o f infeftment, libelling upon that very deed which bore, in g ræmio, to be granted for payment of that sum. The respondent was not a little surprised at this prosecution. He had before, as he thought, given Mr Edmonfton full satis- faction for the sum he owed him, and was very unwilling to be again laid at his mercy; he therefore stated his defences to the sheriff, who, without hesitation, sustained them, and refused a petition for Mr Edmonston. But the petitioner seems to have thought, that, i f the cause were once moved in this court, that step would, o f itself, oblige the respondent to renounce his right o f reversion, as he knew he was unable to bear the expence of a process in the supreme court; he, therefore, procured an advo- cation; which having come, in course o f the rolls, before the Lord Barjarg, his Lordship pronounced the interlocutor fairly recited in the third page o f the petition: ' Finding that the dis- position was granted by the defender and accepted o f by the pursuer in solution o f the debt.’ And your Lordships having ordained answers to be given in to a petition for Mr Edmonston reclaiming against this interlocutor, what follows is submitted in obedience to that appointment. And, in the outsetting, the respondent must own, that he can- not conceive how the principle laid down in the Lord Ordina- ry ’s interlocutor can be disputed. The disposition itself, in toti- dem verbis, declares, ' That, for the said James Edmonston his payment o f the s aid sum and annualrents thereof, restin g since Whitsunday last, the respondent had sold and disponed, & c.’ The Lord Ordinary has accordingly found, in the very words o f this deed, that it was granted in s olutum o f the former debt; had he found otherways, he must have contradicted the disposition on which his interlocutor proceeded. The The petitioner says, that, because the deed does not bear that the price was instantly paid, the disposition cannot be consider- ed as containing a sale under reversion. But the respondent does maintain, that a price was instantly paid; the former vouchers o f debt were delivered up to him discharged, which was, in e- very respect, equal as if the respondent had first paid the debt and obtained a discharge, and then the petitioner had afterwards paid him back the money in consideration o f his granting this disposition. What use could it serve for the petitioner to re- ceive money with one hand and pay it away again with the o- ther, when the ceremony might be saved by the simple act o f at once delivering up to him his notes o f hand for the value? It is, however, proceeding upon the supposition that no pur- chase-money was paid, that the whole argument in the petition is founded; and, if the dist in ction is adverted to betwixt the situa- tion in which this L.49 stood before granting the disposition,and af- ter that period, the whole tendency o f the argument is overthrown. Before the date o f the disposition, the respondent, no doubt, owed Mr Edmonston L. 49, which he could pursue for and de- mand from the respondent when he thought proper. In payment o f this sum the disposition is granted; from that, and from the moment the former grounds o f debt were delivered up, it ceases to be a debt due by the respondent to the petitioner, and, in place thereof, becomes a sum of money advanced by the petiti- oner to the respondent, as the price o f certain subjects which he dispones to him, redeemable always when the respondent should think proper, upon payment of the purchase-money to the pe- titioner. It is in consequence of his not attending to this obser- vation that he says, ' The deed itself declares that the money is not paid; for the disposition bears, that the lands shall be re- deemable upon payment o f the sums before mentioned; and then asks, What is there in this that should import his giving up all after claim against the defender for payment o f this debt?" It It is not in the clause here alluded to that the pursuer gives up his after claim of debt; it is in the clause above quoted, in the beginning o f the disposition. There is nothing more con- tained in this last clause except a clause o f reversion, whereby, up- on payment o f the purchase-money, he is intitled to get back his own subjects, upwards o f double the value. The perplexity I n which the petitioner endeavours to involve this clause, is owing to his applying the words, payment o f the s aid sum, to the debt which was already declared to be paid, and not to the purchas e-money, which was the onerous cause o f granting the disposition: But the respondent cannot figure to himself any words more proper to be used for expresi n g the meaning o f parties, than those which were actually used upon this occasion; and it is believed, if your Lordships were to look into the clau- ses of reversion contained in every disposition in which power is reserved to the seller to redeem the subjects, you will find them to be the same which are contained in the present disposi- tion, viz. That the lands are only redeemable upon payment o f the s ums before mentioned. It is not said in the disposition, that, on payment o f the debt before mentioned, the lands are to be redeemed; it would have been absurd to say so. The debt had formerly been declared paid; the writer o f the deed, therefore, says, that, upon payment o f the sums before mentioned, now become the purchase-money, either by intromissions with the rents, or by actual delivery o f the money, i f the respondent should chuse to redeem before that sum was extinguished by the rents, the subjects should be declared redeemed. In fact, the whole argument resolves into a play upon the word payment. The defender never pled, nor meant to plead, so ridiculous a thing, as that Mr Edmonston was to be cutout o f his debt without value, merely by granting the disposition: All that he humbly contends is, that no obligation o f payment lies a- gainst him, till he shall voluntarily chuse to redeem; nor, on the other hand, can the pursuer be obliged to denude, till he shall shall actually receive full payment o f the sum paid by him to the defender, for granting this disposition; but he has already accepted of this disposition in payment of his former debt; he must; therefore undoubtedly be paid the purchase-money, be- fore he shall be obliged to part with the lands which he thus bought. The petitioner further fays, that the obligation upon the respondent to make payment still remains; but, from what part o f the deed does he find this out? There is not, within the four corners o f the disposition, a single word to that purpose; on the contrary, he gave up his former vouchers o f debt by which the respondent was obliged to pay, with a discharge thereon, upon receiving this disposition. Had it been meant that an obli- gation for payment should still remain, there can be no doubt, that an heritable bond o f corroboration would have been granted, and the former obligation o f payment still kept up: But it is now put in the respondent’s power to redeem or not, as he thinks proper, and at what time he pleases; but the obligation for pay- ment of the debt is at an end, that being already done. In short, take the whole deed together, and it is impossible to hesitate a moment in determining that it is ju st a common dis- position to the lands, with a clause o f reversion in the granter’s favour: This is no uncommon thing. Numbers of dispositions are granted in that shape. But it never was before contended, that the person in whose favour the benefit was granted is, at the op- tion o f the disponee, liable to a personal ac ton for repayment of the price o f the subjects, when, on the contrary, he has the ex- press privilege of redeeming or not, and at what time he pleases. Were the subjects disponed evicted from the pursuer, he might, upon the clause of warrandice in the disposition, have recourse against the respondent for repayment of the purchase-money, or so much of it as remained unextinguished by intromission at the time of eviction; but it is believed, that is the single case wherein it can be figured, that action lies at the instance o f a disponee against the disponer for repayment of the purchase- money. money. Were it otherwise, the respondent might ask the pursuer this question, What is the meaning of a disposition for an onerous cause? The sty le o f an heritable bond, or right in security, is well known to every country-writer; both these begin with a perso- nal obligation upon the granter to make payment o f the debt, and, in s ecurity o f that personal obligation, they further oblige him to infeft the receiver in an annualrent corresponding to the interest o f the money to be uplifted forth of some heritable subject. But the deed in question has not the least similarity to either o f these. It is true the respondent by that deed acknow- ledges he is resting L. 4 9 sterling to Mr Edmonston. But is there any obligation for payment thereof? None in the least; on the contrary, that deed is declared to be granted in payment; and, after Mr Edmonston is once paid and declared so to be, How can he insi st for payment a second time of the same debt? To suppose a new personal obligation to be here implied, would be supposin g that a debtor, by giving away an heritable subject in payment o f a debt, rears up the same debt against his perso- nal estate; which would be a palpable absurdity. And indeed, were your Lordships to suppose such a thing, it would be nei- ther more nor less than to substitute, in place o f the deed the parties actually did sig n, another deed of a perfectly dist in ct and opposite nature, and this from nothing more than uncertain suppositions and conjectures o f what the intention o f parties might have been, in opposition to their clear meaning as ex- pressed in the deed itself. The petitioner can never convince your Lordships, that he understood this deed to be nothing more than an heritable bond; the contrary appears from the single circumstance of his pursu- ing a removing against the respondent. Had he been only pos- sessed o f an heritable bond, he might have brought an action of mails and duties against the tenants; or he might have brought an action of poinding the ground upon it: But he would not have been inti- intitled to remove tenants, as that is a right only compe- tent to the proprietor o f the lands, and is inherent in the right o f property. The petitioner assimilates this disposition to a wadset-right, or to an adjudication; and it is no doubt in some respects similar to a wadset before the term o f redemption; because, in this case, the term of redemption is in the defender’s option, which he may fi x when he thinks proper. And, even in a wadset, the respondent has never heard it said, that a requisition can be made before the term o f redemption comes: But the difference betwixt a wadset after the term o f redemp- tion and the present disposition lies here: There is an agreement between the parties in a wadset-right, that the money shall be paid at a certain period; but, as there is here no agreement o f that kind, nor any fixed period at which the redemption-money is to be paid, no requisition can be used on this disposition; and, even although a term had been fixed, against which time only it should be competent to redeem, the petitioner could not have forced the respondent, contrary to his inclination, to redeem the lands. He indeed could have compelled him, ei- ther to do that, or, he could have pursued a declarator that the redemption was fore-closed by the not payment of the purchase- money within the time limited; but more he could not have done. This case is however different from either a wadset or an adjudication, in this other view, that, in both these, there is an obligation for payment; in this case, there is none; on the contrary, the debt is declared paid. There are some collateral circumstances which the petitioner founds upon, in support, as he says, of his other arguments. In the f irst place, he mentions that the respondent paid him L. 2 Sterling, in part of the sums due, which, he says, is totally inconsi stent with the allegation that the debt is discharged and extinguished. To this a twofold answer occurs. In the first place, it was paid be- fore the petitioner took possesion in virtue o f his right. But, in the s econd place, though the debt is extinguished, the redemption- money is not paid; and the respondent, in consequence o f the power power o f redemption reserved to him, made payment o f this small sum to account o f the redemption-money. The petitioner is much mistaken, i f he imagines that he is to be allowed for- ever to keep possession o f subjects yielding L. 8 a year, for the sum o f L. 49. This he knows he will not be allowed to do; for, he knows very well, that, how soon the petitioner’s affairs will permit him to do it, he will redeem the subjec t; and the mean- ing o f this present action is to compell the respondent to aban- don that right, rather than allow himself to be persecuted with the artillery o f the law, which the petitioner would thunder out against him, were he to succeed in his present demand. A letter from the respondent to the petitioner is next copied, which, i f the defender is not mistaken, strongly confirms the former deed. It is not wrote by the same person who writes the disposit io n; and yet it recites the disposition precisely as it stands, and declares that the lands are redeemable by the respondent, but that the petitioner is to continue in possession ay and until he be fully paid of the whole sums that are contained in said disposition. And, it is remarkable, that it declares the disposition was granted for a certain sum o f money, which had been bor- rowed; but, when it talks o f the redemption, it does not talk o f payment o f the money borrowed, but o f the s um that is con- tained in the dispos ition; which evidently demonstrates, that both parties knew very well the change that had been made upon the nature of that sum by the disposition, viz. that, from being a debt due by the respondent to the petitioner, it became so much purchase-money paid by the petitioner to the respondent, on the payment of which only could the lands be redeemed. The petitioner has next recourse to a very extraordinary ar- gument: Because the writer in making out his account, at the distance of two years and a half, that is, in the period betwixt the 1 7th Ju ly 1766, when the disposition was granted, and the 22d November 17 68, when this account is made out, does not exactly recollect the nature of the deed he had wrote at that distance o f time, but calls it a dispos ition in s ecurity, in place o f a disposition under revers ion; therefore, this mistake must alter the nature o f the deed. It It would indeed be not a little extraordinary, were your Lord- ships to gather the nature o f a deed, not from the deed itself, which lies before you, but from a writer’s account, which he makes out at the distance o f two years and a h a lf; when, it is more than probable, he must have forgot every thing about the transaction, excepting only what concerns himself, that he has not received payment for reducing the meaning of parties into writing. And, it is evident, from the showing o f this account, that it has been made up from memory, and not taken from a- r y book which he had kept and entered the transaction in at the time, as there is no date prefixed to any article in it, except the receipt on the foot for payment of the account. And this leads the respondent to consider another equally ex- traordinary demand made by the petitioner, and that is, to allow a proof by witnesses o f the meaning o f parties at the time the deed was granted. This would be a precedent with a ven- geance, were your Lordships to allow parole-evidence to explain the nature o f writings importing an heritable title, at the distance o f six years too after the transaction is finished; there is no knowing where this might stop. The petitioner says, that it is not intended to take oft the effect o f a written deed by this proof, but to explain the meaning of parties in granting and accepting the deed; but this can never be permitted in any case. Howe- ver, there is here no dubiety in the words; the debt is declared to be paid, and the defender is declared to have a power o f re- demption, upon payment of the purchase-money; and both these things, as has been already explained, are pointed out in direct words by the disposition. I f it were possible to make this proposition more ridiculous than by ju st mentioning it, the respondent would beg leave to inform your Lordships o f the names and designations o f the witnesses, who are to explain to your Lordships, upon their oaths, the nature o f the deed in question: They are John W eir tenant in Longhaugh-mill, and John Christie weaver in M id- Calder; the first o f whom cannot spell his own name; both of them, them, from their subscriptions, seem to be miserably bad pen- men; and the respondent really cannot much depend on their accuracy in distinguishing amongst heritable rights, or what is the proper distinction betwixt a disposition under reversion, and a disposition in security. The petitioner concludes, with endeavouring to vindicate himself from the character o f a rapacious creditor; and,in his vindication, he says, that the houses are in a ruinous condition, and that, in or- der to make them yield almost any thing, it will require more money to be laid out upon them than the sums charged for a- mount to. He also says, that, though he obtained decreet o f re- moving at Whitsunday 1770, he has never turned the defen- der out o f the houses, nor, as yet, drawn a sixpence from any part o f them. T he respondent is not at all desirous o f loading the petitioner with bad names: He has stated the facts to your Lordships as they really happened: What conclusion is to be drawn from them, is humbly submitted. He must only observe, that the pe- titioner has misrepresented two facts. The houses are not in a ruinous condition; they stand in need o f no repairs, except a few bundles o f thatch, which the petitioner has at last begun to supply them w ith; and, in place o f drawing nothing from them, he has been in possesio n ever since Whitsunday 1770, has lett the houses to tenants, and levied the rents from them. Could the petitioner have raised money to redeem them at present, your Lordships would not have been troubled with this dispute; he cannot however do it, and he is forty for it. He thought he had already satisfied Mr Edmonston, by giving him a disposition to all he had in the world, which will, o f itself, in a very few years, operate a discharge o f the redemption-money. Since he is not satisfied with this total surrender, which has reduced the respon- dent and a numerous family almost to beggary, Can the re- spondent be blamed for doing every thing in his power to a- void being again reduced to the petitioner’s mercy? In respect wherof, &c. C H A. H A Y.