M'Callum's Trustees v. M'Nab and Others

“In 1864 M'Nab demanded and obtained a reconveyance of one stance, and subsequent demands by him failed, not from any denial of his right, but because of the inability of the agents to adjust the conditions of the reconveyance, which it was assumed must be regulated by the terms of the back-letter, although the parties differed as to their meaning respecting liability for expenditure which had been made on the ground, and the maintenance of works.

In October 1866 M'Nab, in pursuance of an obligation in his antenuptial marriage contract of the same date, assigned to his marriage trustees, for the purposes of the contract, all his right and interest under the back-letter to re-acquire the ground, and these trustees, who are called in this process, formally and in terms demand a conveyance of the whole ground, which is, as it happens, all still unbuilt on.

The questions for decision here are—1st, Whether or not the obligation in the back-letter was assignable, and was validly assigned to the marriage trustees; and if it shall be held to have been validly assigned, then 2d, On what terms the assignees may demand implement from the pursuers, so far as this can be determined under the conclusions of the summons.

II. As to the conditions on which the marriage trustees may demand implement, I should think it clear on general principles that the pursuers are not bound to convey under the back-letter except on payment of M'Nab's debt to them as that may be ascertained in the proper process; and second, of any beneficial or otherwise Page: 368 ↓

Lord Justice-Clerk —There are three questions in this case—(1) Whether the obligation to reconvey contained in this so called back-letter was assignable? (2) Whether, if it was so, it was exhausted by the reconveyance of one lot to the creditor in it? and (3) Whether the creditor in the obligation is entitled to demand as many lots as he pleases?