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. III.
What if there has been no Proclamation?
John Auchinleck v. Mary Williamson and Patrick Gillespie
Date: 18 December 1667 Case No. No 243.
A widow having a jointure, entered into a treaty of marriage with a second husband. It was settled, that the eldest son. who was burdened with a liferent, should grant a tack of the liferented lands to the intended husband; but, at the same time, she privately disponed the liferent to her second son. The marriage having taken place without a formal contract or proclamation of banns, the Lords reduced the assigtion.
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Mart Williamson, Lady Cumlidge, having taken assignation to several debts of her husband's, apprised the estate from her son; and in September 1662, dispones the estate to her eldest son, reserving her own liferent of the mains and mill, and with the burden of 5,000 merks, for John Auchinleck her second son; at that same time her eldest son grants a tack to Patrick Gillespie, bearing expressly, that because he was to marry his mother, and to possess the mains at the next term, therefore he sets the land for an inconsiderable duty, for a year after his mother's death; there was no contract of marriage betwixt the said Mary and the said Patrick, but they were married in December thereafter, and he possessed it till this time, and now John Auchinleck pursues for mails and duties bygone and in time coming, as having assignation to the reservation granted by his mother. It was alleged for Patrick, That as for bygones, absolvitor, because he was bonæ fidei possessor, by virtue of the reservation in favour of his wife, belonging to him jure mariti. 2dly, The assignation made to the pursuer was most fraudulent, being granted at the time of the agreement of marriage betwixt the said Patrick and his wife, and there being a provision granted to the pursuer of 5000 merks, the said Mary did most fraudfully at that same time assign the reservation, and so left nothing to her husband, but a woman past 60 years. It was answered, That where there is a solemn contract of marriage, and proclamation, deeds done thereafter cannot prejudge the husband, but here there is neither contract nor proclamation alleged; and albeit there had been fraud in the mother, the son (being a boy and absent) was no way partaker thereof, and cannot be prejudged thereby. It was answered for the defender, That he hath a reduction depending of this ex capite fraudis, and if the wife could do no fraudful deed after the agreement of marriage, it will thereby be null, whether the son was partaker or not, unless he had been an acquirer for an onerous cause, and albeit there was no contract of marriage in writ, yet the foresaid tack evidences an agreement of marriage.
At advising of the cause, the Lords thought this conveyance a very cheat, and it occurred to them that the marriage and jus mariti are a legal assignation; and there having been nothing done by the son to intimate this assignation, or to attain possession thereby before the marriage, the husband by the marriage had the first complete right, and was therefore preferable; and likewise they found the husband free of bygones, as bonæ fidei possessor; and found that the reason of reduction upon fraud, after the agreement of the marriage evidenced by the tack, bearing the narrative of the intended marriage, of the same date with the pursuer's right and the disposition to the eldest son, relevant to reduce the pursuer's assignation, in so far as might be prejudicial to the husband.
Fol. Dic. v. 1. p. 404. Stair, v. 1. p. 496.*** Dirleton reports the same case:
Mary Williamson Lady Cumlidge, having right not only of liferent but also to the fee of the said estate by comprising, and being about to marry with Patrick Gillespie her second husband; for settling and preventing questions betwixt her children and her husband, she did dispone the fee of the lands to her eldest son, with the burden of 5,000 merks to be paid to her second son at his age of 21 years, and to entertain him in the interim; and at the same time her eldest son did grant and set a tack to the said Patrick, for a year after his mother's decease if he should survive her, of her liferent lands reserved in the disposition, mentioning their purpose of marriage, and that he was to stock the said land, and that his wife might die before him; upon which considerations the said tack is set; at the same time, the said Mary did privately dispone her liferent in favours of her second son John Auchinleck, who intented a pursuit against her and her said husband for the mails and duties of the lands for diverse years. It was alleged, That the said right being a private latent right, the defender ought to be free of bygones as being bona fide possessor by virtue of his wife's infeftment, and his jus mariti. It was answered. That he and his wife are eadem persona, and she being his author, cannot pretend that they possessed bona fide in prejudice of a right made by herself.
The Lords found the allegeances relevant.
It was further alleged, That the disposition made to the pursuer was most fraudfully granted in prejudice of the defender after treaty of marriage, and the said public transactions in order thereto, which were equivalent to, and in lieu of a contract of marriage; the wife having no other thing besides to dispose of besides her liferent, to which the husband has right jus mariti; so that a contract was not necessary as to that; and that the said right was retained by the mother, and not delivered until she was married, at which time she could not prejudge her husband, and that the defender had a reduction depending upon the reasons foresaid.
The Lords found the allegeance relevant; and found that an assignation not intimated, and not being made for an onerous cause, could not prejudge the husband, having by his marriage a public right equivalent to an assignation, and therefore assoilzied.
It was not considered whether the right was delivered or not, being found latent as said is. See Personal and Real.
