Found a sufficient homologation of a sale, made in minority, that the seller, after majority, took payment of a part of the price.
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By contract betwixt Mary Rires and Mr William Rires, the said Mary, for the sum of 1000 merks, dispones to the said Mr William a right of wadset, which she had of the lands of Strathodie from the house of Urie, with this condition, she being then minor, if at her majority she should revoke the contract, in that case Mr William should put her in her own place, she paying to him 1000 merks. Upon this contract, and her revocation at her majority, she and Alexander Hay her husband charge Mr William, who suspends upon diverse reasons, namely, That albeit the charger did revoke, yet after her majority and revocation, she and her husband have homologated the bargain, in so far as she and her husband having fitted accounts with him, they have acknowledged themselves to have received a part of the said 1000 merks.—It was answered, That Mary does not subscribe the accounts, and her husband's deed cannot prejudge her other heritage, to which he has no right but jus mariti. 2do, Nor can it reach him, because the money was not received animo homologandi; but there being a submission standing betwixt them, he took a bond of borrowed money for the sum.
The Lords having considered the account, which expressly bears a receipt of a part of 1000 merks, and only subscribed by her husband, they found it an homologation of the bargain, so far as might take away the husband's right quocunque nomine, but prejudice of the wife's heritable right, if she were not denuded otherwise. The like the Lords found this same session, Straiton against Frazer and Forbes, in the case of an heritable sum belonging to the wife before in legacy by her predecessor, and homologated by her husband. See Husband and Wife.
