A married woman's deeds in what cases effectual against herself, the husband consenting or not consenting.
Subject_3 SECT. IX.
Wife's Power of Administration of her own Property, without her Husband's Consent.
William Edmonstone v. Lady Edmonstone
1570. Case No. No 202.
A Lady, stante matrimonia, being infeft in some of her husband's lands, obliged herself to restrict the infeftment to an aliment when her son should come to perfect age. Found that this obligation was effectual, tho' her husband did not subscribe it.
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In an action moved by William Edmonstone of that ilk, against his mother, the Lady Edmonstone, for registrating a contract wherein the said Lady, immediately before she was infeft in conjunct infeftment of the Mains of Edmonstone, obliged her to Walter Edmonstone a bastard brother of her husband's in name of the family of Edmonstone, that if it should happen her son, the heir of Edmonstone, to come to perfect age of twenty-one years, she should renounce her conjunct infeftment of the said lands and mains, reserving to her a reasonable terce of the same. It was opponed against the registration of the said contract by the said Lady, That her son and heir foresaid had no action to pursue the said contract to be registered, because she was not obliged to him in the said contract, and the said Walter, bastard foresaid, might not acquire any obligation to him, not being a person who of the law potuit alteri acquirere vel stipulare; whilk allegeance being repelled, in respect he was one of the family, cujus interfuit procurare utilitatem familiæ, she opponed another exception, that at the time of making the said obligation, she was clad with a husband who had not consented to the said obligation, and so no exception could follow upon it, albeit it were registered. It was answered, That she was nothing hurt by the said obligation; for, seeing the said infeftment was not given to her in recompensatione dotis, but freely constante matrimonio, it was to be understood that the said infeftment was made in respect of the said obligation, and so the said obligation dedit causam infeodationi, wherefore she could not come in the contrary thereof, she receiving profit of it; and also, a woman could have no more privilege than a pupil, and if a pupil give a reversion of lands, without that reversion, he would be compelled to keep the reversion, et per cosequentiam, the woman was in the same case. And also the practique of Scotland was, that all such obligations are made without the presence of the husband to the effect that they should not afterwards allege the same to be done through fear of the husband; in respect of the which reply and reasons, the said exception was repelled.
