Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Heriot, Lady Powrie,
v.
James Grahame of Monorgune

Date: 30 June 1649

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In the action of maills and duties pursued by Heriot, Lady Powrie, first, against Mr James Grahame of Monorgune, alleged heritor of Lawlethime,—it was excepted upon an infeftment from the Laird of Fentrie his brother, who had disposition from the Laird of Powrie, her husband, and was infeft therein: neither could the pursuer her prior infeftment be respected; because, proceeding on a bond from her husband, stante matrimonio, for love and favour, which is donatio inter virum et uxorem, prohibited in the law ne mutuo amore se spolient;—FF. et C. de Donat. inter Vir. et Uxorem;—and so revokable, and was de facto revoked, in so far as the said Laird of Powrie did alienate those same lands to the said Laird of Fentrie. Whereunto it was replied, That there could be no tacit revocation understood here, to her prejudice; since her husband had given to her the said lands, under reversion to him and his heirs-male, for ten merks, which he never did redeem; and farther, that the defender, knowing of this, at least the Laird of Fentrie, author to him, did take infeftment of the lands of Powrie in warrandice. Whereunto it was duplied, That, in respect of that reversion for a small sum, it was much more revokable, and ought to be revoked in favours of the singular successor; who, if he came back upon his warrandicelands, might be repelled by the heritor thereof, who had bought them sinsyne from the Laird of Powrie and herself; they being truly her conjunct fee lands, and she consenting legally to the alienation. And it may be, that this pretended right of Laulathime, and other lands, did move her to the alienation of her conjunct fee, provided by contract of marriage; but she did not consider that the same was not remuneratorie, neither could be; the same being long anterior to the alienation of her conjunct fee, and so could not be intuitu matrimonii, which is the case sustainable in law. Neither does here militate the distinction quod maritus non sit pauperior factus, nec uxor locupletior, which has place by the laws in minutis tantum et fructibus consumptis. The Lords found little in it: but, pitying the poor lady, reserved it to be heard in præsentia, to the effect some composition might be had by way of arbitrament, since her husband had debausched all, and left nothing to her.

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