Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. VII.
Husband's power of disposal over Tocher provided in a Contract of Marriage.
Logan v. L Kinblechmont.
Date: 21 November 1623 Case No. No 46.
A husband, to whom the tocher was payable by his wife's father, to be employed, with as much of his own, upon land, “to the husband and wife, and the heirs of the marriage;” with consent of his wife, assigned the same to his creditors. It was found, that the debtor was not obliged to pay the tocher to the creditors, nor to any other effect than to be laid out in terms of the contract of marriage.
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The Goodman of Kinblechmont being obliged by contract of marriage betwixt his daughter and Mr John Hamilton, to pay to the said Mr John the sum of 4000 merks in tocher, to the effect that the same, and as much to be furnished by the said Mr John, might be employed upon land to the said Mr John and his spouse, and to the heirs to be begotten betwixt them; and Logan, as assignee made by the said Mr John and his spouse to that same sum, which was obliged to have been paid by Kinblechmont, as said is, for satisfying of a debt owing to the assignee by the said Mr John, charges Kinblechmont for payment thereof, who suspends upon this reason, viz. That he was not obliged to pay the sum, but to the effect it might be employed upon land to his son-in-law and daughter, and to their heirs, with the like sum to be furnished by the cedent, as said is; and therefore he could not be holden to pay it to the charger, for satisfying of the cedent's debt, being otherwise destinate, by the tenor of the clause of the contract, which constituted him debtor therein. This reason was found relevant; for the Lords found, That the assignee could not charge the suspender to pay the sum to any other effect, than according as he was obliged in the contract, seeing the cedent could not ask the same himself, but to that use; and this was found relevant, albeit it was answered by the assignee, charger, That he was made assignee both by the husband and the wife, who had the only interest to seek the employment, and who might have disharged the same, being conceived in their favours; for if the sum were employed conform to the contract, the husband might uplift the same, and was master thereof; and so seeing he might uplift the same, if it had been laid upon land, he might also effectually make assignation thereof; which was repelled by the Lords, seeing the tenor of the parties obligation, who was only obliged to pay for a special end destinate by him, could not be altered without his own consent, who was so obliged.
This same case being brought in upon 17th January 1627, before the Lords, to be disputed betwixt the same parties, and they heard upon this same reason de novo; the Lords over again found, as it is here set down.
Act. Lawtie.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 310. Durie, p. 82.
