Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. II.
Prohibitions, - to alter a Destination, - to uplift without consent.
Alexander Binny v. Margaret Binny
Date: 28 January 1668 Case No. No 3.
A woman bound herself to resign certain lands in favour of herself, and the heirs of her body, whom failing, in favour of her brother, and to do no deed in prejudice of his succession. After inhibition was served on this deed, she married, and disponed the lands to her husband. This disposition was reduced, as being in prejudice of the brother's succession.
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Margaret Binny granted a bond, obliging herself to enter heir of line to her father, and to resign the lands in favours of herself, and the heirs to be procreated of her own body; which failing, to the heirs of Alexander Binny her father, and obliged herself to do nothing contrary to that succession; and having married William Brotherstanes, by her contract of marriage, nomine dotis, she dispones the lands to him. This Margaret was the only child of Alexander Binny's first marriage, and there was an inhibition used upon the bond before her contract of marriage. Alexander Binny being son of the second marriage, and heir of line to his father, pursues the said Margaret to fulfil the bond, and to enter, and resign the land conform thereto, and thereupon did obtain decreet; which being now suspended, it was alleged, that this being but an obligement to constitute a tailzie, could have no effect to hinder her to dispone to her husband in name of tocher, which is the most favourable debt, or to contract any other debt which the pursuer (who behoved to be her heir) could never quarrel. 2dly, It was alleged for the Husband, That he could not be decerned, as husband, to consent to this resignation, contrary to his own contract. It was answered, That this was not only a bond of tailzie, but an obligement to do nothing that might change the succession, and so she could not voluntarily dispone; but the husband's provision might be competent enough, seeing both she has the liferent, and the children of the marriage will succeed in the fee; and albeit the pursuer must be heir of tailzie, yet obligements in favour of heirs of tailzie are always effectual against heirs of line, in relation to whom the heir of tailzie is but as a stranger.
The Lords repelled the reason, and found the letters orderly proceeded, till the wife entered, and resigned with consent of her husband, conform to the bond, seeing there was inhibition used before the contract; but they did not decide, whether this clause would have excluded the debts to be contracted by the said Margaret, or her heirs, upon a just ground, without collusion; but found, that she could not make a voluntary disposition to exclude that succession, in respect of the obligement to do nothing in the contrary.
Fol. Dic. v. 1. p. 304. Stair, v. 1. p. 516.*** Dirleton reports the same case:
Margaret Binny being induced to grant a bond, obliging her to resign some tenements of land in favour of herself and the heirs of her body, which failing, in favours of her brother Alexander Binny, and to do no deed in prejudice of his succession, she did thereafter marry, and dispone to her husband the said tenements. In a pursuit at the instance of her brother against her and her husband, for his interest, upon the said bond, and implement thereof,
The Lords found, that she, with consent of her husband, ought to resign. Some of the Lords thought, that the import of such obligements is only that the granter should not alter such tailzies in favour of other heirs; and that they are not restrained to sell or dispone, for onerous causes, if they should have occasion; otherwise they should cease to be fiars, the very essence of fee and property consisting in a liberty to dispone. It may be questioned, How far the husband may be liable to his wife's obligements before the marriage? For there being a communion betwixt them only as to mobilia, it may appear that he should only be liable to moveable and personal debts, seeing penes quem emolumentum, penes eundem onus; but this point was not debated.
