Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Jean Crichtoun and John Elies
v.
Tenants, and Robert Maxwell

Date: 27 January 1666

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There was a contract of marriage betwixt William Maxwell of Kirkhouse, on the one part, and John Crichtoun of Crawfurdstoun, taking burden for his daughter, Jean Crichtoun, on the other part; whereby, for the sum of 5000 merks, received in tocher, the said William is obliged to infeft her in the lands of Minoly, and certain teinds, extending to £500 Scots of rent,—the said William his estate being near yearly £2000; and is obliged to provide her to the liferent of the conquest lands. The said William having conquest no lands, but having succeeded to the Earl of Dirletoun, to a part of his tailyied lands of 1000 merks of rent; the said William, being now deceased, the said Jean Crichtoun is kenned to a terce of the lands, wherein he died infeft; and the said Jean, and Mr John Eleis, now her spouse, pursue the tenants of these lands for a third part of their rents.

It was alleged for Robert Maxwell, now of Kirkhouse, and his tutor, There can be no terce of these lands; because, there having passed a minute of contract, which was not extended during her husband's lifetime, that it ought now to be extended; and declared that the provision to the jointure-lands was in satisfaction of terce and third, according as it was the intention and meaning of the parties, and far exceeding the same in these [times.] They produce a process for extending, and a reduction for the kenning of the terce, for the same reason of extending the clause in the contract, as said is.

To which it was replied for the pursuer, That the clause of the minute cannot be extended to be in satisfaction or beyond the words thereof, especially in substantialibus of so great weight as the renouncing of a terce.

The Lords repelled the defence, and found, That the minute of the contract of marriage could not be extended to be in satisfaction; and therefore found that the pursuer ought to have her terce, seeing she was not precluded by the minute.

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