Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VII.
After Proclamation of Banns, the Woman considered to be in the same case as if actually Married.
Subject_3 SECT. II.
After Proclamation, barred from granting Gratuitous Deeds, or Deeds to the Prejudice of her Husband.
The Lady Bute, v. her Son, The Sheriff of Bute
1665.
December. Case No. No 241.
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Dame Grissel Campbell, relict of the sheriff of Bute, after she was contracted in marriage with Mr Archibald Grahame, now her second husband, and after she was proclaimed with him in the parish kirk, granted a renunciation of a part of her liferent lands, in favour of her son, this sheriff, (the rest unrenounced, being but very mean), whereof she, with consent of her husband, intents reduction upon this reason, That she could do no deed, after she was contracted and proclaimed, without her husband's consent, no more than if she had done it the time of the marriage.
Which the Lords found relevant, notwithstanding of any thing alleged to the contrary; and specially, That her husband, before the solemnization of the marriage, knew of the granting of the renunciation, and said nor did nothing against the same
Fol. Dic. v. 1. p. 405. Gilmour, No 171. p. 122.*** Stair reports the same case.
1666. Jan. 5. The Lady Bute and her husband pursue a reduction of a right of a part of her conjunct-fee, made in favours of her son, upon this ground, that it was done after her contract of marriage with her present husband, and public proclamation in the kirk thereupon. It was answered; first, That once proclamation was not sufficient; 2dly, That it was offered to be proved that the husband knew that the right was granted, and yet he proceeded in the proclamation and marriage, which behoved to proport his acquiescence and consent; and alleged likewise the case was most favourable, because the lady had married, unsuitably, her husband's chaplain. It was answered for the pursuer, that once proclamation is sufficient, as has been several times found, and that there is no weight to be laid upon her husband's knowledge, who knew he had a remedy competent in law, whereby the deed done by his wife after the contract and proclamation would be null; and so his going on in the marriage did not infer his acquiescence or homologation: And as for the favour of the cause, it is much more on the pursuer's part, who being provided by her husband to 27 chalders of victual, had, before the contract of marriage, quit 20 to her son; and of the seven remaining, he had urged her to quit 100 lb. and seven bolls of victual were only now in question.
The Lords found the reason of reduction relevant, and repelled the defence upon the husband's knowledge; for they thought that as deeds of a wife clad with a husband, without his consent, are null, after the solemnization of the marriage, because she is then in potestate viri, et sub ejus tutela; so that she is truly wife, after the contract of marriage becoming public by proclamation; and it occurring as a doubt amongst the Lords, whether the reduction ought to be sustained at the instance of the husband only, in so far as concerned his interest jure mariti; so that the right might be valid against the lady, if she survived.
The Lords sustained the reason simply, at the instance of both, and found it null as to both, as being done without her husband's consent.
Stair, v. 1. p. 333.*** This case is also reported by Dirleton.
The Lady Bute, Dame Grissel Campbel, being contracted and proclaimed with Mr James Grahame; in the interim before her marriage, was induced, (and, as she pretended, forced) to grant a disposition, and discharge of a part of her jointure in favour of her son, the sheriff of Bute; he having, after the first proclamation of their banns, stopped any further proceeding until he extorted the said deeds.
The Lords (in a reduction of the said deeds at the instance of the lady and her husband), found, that post sponsalia and banna, she was not sui juris, and could do no deed in prejudice either of her husband or herself, without his consent, and that she was in the same condition as if she was married: And therefore the Lords found the reasons relevant for reducing the said rights, both as to her husband and herself.
It was alleged, that the husband had consented, in so far as after the said deeds were done, he knew the same, and yet proceeded to marry. The Lords repelled the allegeance.
