Interdiction strikes not against onerous or rational Deeds.
Semple v. Noble
1582.
July. Case No. No 20.
A person interdicted may dispone a suitable liferent or conjunct fee to his spouse.
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Gabriel Semple of Cathcart pursued for the reduction of certain infeftments and obligations made by his umquhile father to Margaret Noble, his goodmother, and to certain of his daughters, sisters to the said Gabriel. The reason of the summons was, because, long before the making of the said infeftments and obligations, the pursuer's father, maker thereof, was interdicted at the instance of the Laird of Cowdon, by reason of a contract betwixt the said Gabriel, and his said father, on the one part, and the Laird of Cowden, and N. Spreull his daughter, future spouse to the pursuer, upon the other part; and the said interdiction was lawfully intimated and published; and so the said Gabriel, father, being interdicted and lawfully published, had no power thereafter to make any alienation or disposition of his lands in defraud of the contract, and into stopping of the heirs gotten betwixt the pursuer and his wife of the bruiking of the heritage. It was excepted and answered to the reason of the summons by the defender, Margaret Noble, That the infeftment made to her of her conjunct fee, ought, on no manner of way, to be reduced, because the same was given to her in conjunct fee and liferent by her husband into the marriage, and as it was leasome unto a husband to marry and take a wife, so it is sufficient and leasome to make provision to her to have her sustentation, and to have whereupon to bring up her bairns; for, of the common law, generalis alienationis prohibitio et interdictio nunquam includit in se alienationem necessariam; textus est planus in L. 13. D. Familiæ Erciscundæ; et pro hac eadem materia doctores multas alias adducunt leges, de quibus vide Ludovicum consilio 219 figur 18, et vide etiam Joan. Pet. de ser. And also both of the common law and of the practice of Scotland, a minor who may not otherwise annalzie, yet he might give in tocher or marriage or conjunct fee to his wife, ut in D. De Legat. 1. et C. De Donat. ante nupt.; and so the disposition of the liferent made to the wife, notwithstanding of the general interdiction and prohibition, could never be reduced or taken away by a thing most necessary in itself, and agreeing best with good law, reason, and practice; and also it was compatible, and might stand with the first interdiction specified into the contract of marriage; because the contract bore, that the interdiction was made to that effect, and that the pursuer and his wife's heritable succession should be defrauded or prejudged, which on noways was done by the disposition of a liferent, the which expired with the person of liferent. To this was replied and answered, partly by the advocates by reasoning at the bar, and partly among the Lords themselves, that of the common law verbum alienationis latissime patet de verb. signif. et quod prohibitæ alienationis accipienda sit, textus est apertus in L. 7. C. De rebus alien. non alienand; Nam ut ait “Sancimus sive lex alienationem inhibuerit, sive testator hoc fecerit, sive pactio contrahentium hoc admiserit, non solum dominii alienationem vel mancipiorum manumissionem esset prohibendam, sed etiam ususfructus dationem, vel hypothecam;” and so interdiction and inhibition being made, all alienation, not only heritable, but also into liferent, was forbidden, for the pursuer was directly, by the disposition made to the wife, prejudged anent the heritable succession; for a man might happen to marry four or five wives, and having power to dispone to every one of them a liferent or conjunct fee, the hope of the succession to the heir will be of little avail to abide the said deduction of all the liferents; and also of the practice of Scotland all interdictions are stricti juris, and done for good considerations and causes et secundum constitutionem nostræ republicæ for the safety of noblemen's houses et ad conservandam familiam; and the present interdiction was made into contemplation of the third person, who was the Laird of Cowdon, that he had disbursed great sums of tocher with his daughter, and so the same could on no manner of way be loosed or broken nisi cum sua factura. The Lords, after long reasoning and advising, pronounced by interlocutor, that the exception was relevant, and repelled the reason of the summons. The Lords were moved to do the same, because the defender having a terce of the lands, and being served thereunto, was content to renounce her terce for her conjunct fee. Nonnulli dominorum in contraria, &c. that in respect of the interdiction, she should have neither terce nor conjunct fee, having for their ground, that interdictiones de jure nostro sunt stricti juris, and ought not to have been broken.
