Acting in one Capacity, whether it infers consent necessary to be given in another Capacity.
Euphan Brown v. Thomas Happiland
Date: 29 January 1668 Case No. No 53.
A woman during her second marriage purchased a tenement, and took the disposition to herself in liferent and to a daughter of the first marriage in fee. The husband acted as bailie in the infeftment. Found that he thereby consented to the disposition, and that his heir could not challenge it.
Click here to view a pdf copy of this documet : PDF Copy
Marjory Bruce being first married to ———— Happiland, and thereafter to Robert Brown, she acquired right to a tenement of land to herself in liferent, and Euphan Happiland, her daughter of the first marriage, in fee; which infeftment is given by the said Thomas Brown her husband, being then Bailie for the time. Agnes Happiland dispones this tenement to Thomas Brown, heir of the marriage betwixt the said umquhile Thomas Brown and Marjory Bruce, and for the price thereof gets a bond relative thereto. Thomas Brown being charged upon this bond, raises reduction upon minority and lesion. To the which it was answered, There was no lesion, because the disposition of the land was an equivalent onerous cause. It was answered, That the disposition was no onerous cause, because the lands disponed belonged not to the disponer, but to the suspender himself, in so far as they were conquest by Marjory Bruce, while she was spouse to his father, so that the money (wherewith she acquired the same) belonging to the husband jure mariti, the land must also be his, unless it were condescended and instructed that she had heritable sums, not falling within the jus mariti wherewith this right was acquired. It was duplied, That this was but a naked conjecture and presumption, which is sufficiently taken off by the husband's giving sasine as a Bailie. It was answered, That this was actus officii, which he could not refuse, but he knew that the infeftment in favours of his wife, would accresce to himself.
The Lords repelled the reasons of suspension and reply, in respect of the answer and duply, and found that the fee of the land belonged to the wife and her daughter, and that there was no lesion in giving bond therefor.
