How far the Disposition must be onerous, to elide the Passive Title.
Courty v. Wemyss
Date: 14 January 1637 Case No. No 120.
It was covenanted in an eldest son's contract of marriage, that the tocher should be applied for redeeming a wadset; and that the lands wadset should be disponed by the father to the eldest son and his heirs. A disposition by the father, in implement of this contract, though in part lucrative, because the lands were worth more than the wadset sum, was found not to infer a prĉaceptio, the son offering to restrict himself to the wadset.
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One Mr David Courty, Minister, to whom umquhile Mr John Wemyss of Lothaker was addebted 1000 merks, pursuing Wemyss, his son, hoc nomine, as successor to him, titulo lucrativo post contractum debitum, to pay the debt foresaid; and for instructing him to be successor, producing a sasine of the lands of Lothaker, proceeding upon his father's resignation; and the defender alleging, That he could not be found successor by that sasine, because, the same was granted to him for satisfying of a contract of marriage, made betwixt the defender and his spouse, and the defender's father, and Ronald Murray, father to his said spouse, on the one and other parts, by the which contract it was appointed, that the sum of 8000 merks, contracted to be paid to him in tocher, should be paid to Mr James Wemyss, Commissary of St Andrews, for loosing from him of the lands of Lothaker, contained in the said sasine, whereby he was alleged to be successor to his father, as said is; which lands were impignorated by his father to the said Mr James, redeemable upon the said sum; and which tocher being paid accordingly to the said Mr James, and he renouncing the lands, and the defender being thereafter infeft therein, albeit the infeftment proceeded upon his father's resignation, yet flowing from a cause onerous, he cannot be thereby found to be successor, to pay all his father's debts;—and the pursuer replying, That the defender being infeft in the said lands upon his father's resignation, must be found successor, and cannot defend himself with Mr James Wemyss's wadset, seeing, by this infeftment flowing upon resignation, he acquired more than the wadset, viz. both the superiority and the right of reversion, the lands being more worth than the wadset, aud he, by the right produced, acquiring both the conjunct fee to his wife, and the heritable right of propriety to himself and his heirs;—and the defender duplying, That he restricted his right only to the wadset, which was before competent to Mr James Wemyss, and which is now acquired by the defender, for the onerous cause, as said is; and he renounces all other right, which he may claim anyways by that infeftment, or any other manner of way, to the said lands, except the said wadset, which he is content should be redeemable from him, by any of his father's creditors, by payment of that sum; and further, Mr David Primrose, in name of Ronald Murray, father to the defender's spouse, compeared, and alleged, That, seeing by the contract of marriage, the said lands were provided to her in conjunct fee, and that for the payment of the tocher-good, which was paid, as said is, of no reason ought she to be prejudged of that benefit of her contract of marriage; neither ought his son-in-law to be found successor to his father thereby, and burdened with the heavy and unsupportable burden of his father's debt, by that infeftment; the preparative whereof was very dangerous to elude thereby conditions of contracts of marriage; specially seeing the defender, who is yet minor, rebus integris, renounces all benefit by the said infeftment, except the said wadset, as said is, which he has acquired ex causa maxime onerosa:———The Lords, in respect of the foresaid exception and duply, which they found relevant, found, that the said infeftment made not the defender to be holden as successor to his father, in respect that the defender retrenched the infeftment to the said wadset, and that he had not made any other benefit thereby, but rebus integris renounced all further benefit thereof, and was content that the lands should be redeemable from him, and also from his wife, by the creditors, upon payment of 8000 merks; and which being paid, and the same secured to his wife during her lifetime, the Lords found to be equivalent to that part of the contract, whereby she was appointed to be provided to her liferent of the said lands; and found, that the provision to her of the said liferent of 8000 merks, to be in satisfaction thereof to her pro tanto, and that she being secured of her liferent of the said sum, that she and her husband ought to grant the lands lawfully redeemed, and should renounce all right she or he could pretend thereto; and so the defender was not found successor by the said infeftment, although it bore more nor the wadset, and that the heritable right of the lands, whereto he was provided by that sasine, was far more worth than the sum of the wadset.
Act. Gilmour et Craig.Alt. Stuart et Primrose.Clerk, Gibson.
Fol. Dic. v. 2 . p. 36. Durie, p. 822.
