A tack granted by a husband to his wife, bearing ‘for love and favour,’ was sustained, the wife condescending that it came in place of some prestations in the contract of marriage, which the husband proved unable to implement.
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Alexander Chisholm having apprised certain lands from the heirs of Sir Alexander Fraser of Brae, and thereupon insisting for mails and duties, compearance is made for the Lady Brae, Sir James his relict; who being provided by her contract of marriage, to certain lands, with an obligement that they should be worth 2400 merks yearly, her husband did thereafter, during the marriage, grant her a tack of the whole remanent lands he had then, with a general assignation and disposition omnium bonorum. The tack bears to be for love and favour, and that the Lady may be in the better capacity to aliment his children, and bears L. 20 of tack duty, in case there be children, and a duty equivalent to the rent of the land if there be none. The entry to the tack is at the next term after the granting theseof, and not at the husband's death. Upon this, it was alleged for the Lady, that she ought to be preferred to the mails and duties of the lands in question, by her tack clad with possession by her husband's possession before contracting of these creditors debt, which must be understood her possession stante matrimonio, and by her own possession, after her husband's death, before Chisholm's apprising or infeftment. It was alleged for Chisholm, That the allegeance founded upon the tack ought to be repelled; 1mo, Because it is a donation betwixt man and wife, null of itself, nisi morte confirmetur, and so is still ambulatory, and in the husband's power, during his life, and is in the same case as bonds of provision granted to children, and kept by their father, which being still in his power, any debt contracted after would be preferable thereto; so here this tack being in the husband's power, the contracting of a debt thereafter is preferable thereto, and is an implicit revocation thereof, 2do, This tack being a most fraudulent, latent, and clandestine deed, betwixt man and wife, whereupon nothing followed in her husband's life, the creditors having no way to know any such thing, and having contracted bona fide, are ensnared and defrauded thereby; and the Lords having declared, that in regard they had reponed the Lady against a former decreet, she should now dispute her right of the tack, as in a reduction, against which, this would be an unquestionable reason, that it is a latent, fraudulent contrivance, containing a disposition omnium bonorum. It was answered for the Lady, to the first, That donations betwixt man and wife, are not, by our law and custom, null, but are valid, a principio, unless they be actually revoked; and albeit implied revocations have been sustained by dispositions, or infeftments of the same lands to others, yet never by a personal bond or contracting of a debt, posterior. To the second, The Lady's right can never be interpreted in fraudem creditorum, there being no creditors the time of the granting thereof, and the husband being free, and incapacitated by no law, an infeftment of the remainder of his estate to her, so cautioned as this is, is both legal and favourable; and albeit in the same there be a disposition omnium bonorum, which cannot reach to goods acquired after the debts, yet the tack is valid, et utile per inutile non vitiatur. Thirdly, Albeit this tack bear to be a donation, and for love and favour, yet it is neither fraudulent nor revocable, because it is donatio remuneratoria, granted by the husband, who was obliged to make up the jointure-lands, contained in the contract of marriage, to 2400 merks, of which they came short of four at the beginning, and other four have been evicted. It was answered for Chisholm the creditor, that this allegeance was no ways competent against him, who is a creditor, contracting bona fide; but the Lady ought to pursue her son as representing his father, for fulfilling her contract; or, at least, till that be declared against the heir, who is the only competent party, the creditor must possess conform to his right. 2do, Whatever was the husband's obligement, the husband hath not granted this tack in remuneration or satisfaction thereof, but expressly for love and favour, without mention of any other cause. It was answered, that the expressing of love and favour, which may relate to the general disposition, cannot exclude other causes; and albeit it make the tack a donation, yet it is well consistent to be a remuneratory donation, which is not revocable.
The Lords found the allegeance relevant, that this was a remuneratory donation, and that there was also much wanting of the contract of marriage; and found it competent against this apprizer; and superseded to give answer to the other points, that if it were not proved remuneratory, whether it could be reduced as latent and fraudulent, at the instance of posterior creditors, or as being in the husband's power, was indirectly revoked, by contracting of the posterior debt, having no more estate to burden with his debt.
Fol. Dic. v. 1. p. 411. Stair, v. 1. p. 591.*** Gosford reports the same case:
Chisholm having apprised from the apparent heir of Sir James Frazer of Brae, and pursuing him for the mails and duties, compearance is made for the Lady, who craved preference, not only upon her contract of marriage, but upon a tack set to her after the marriage, bearing for love and favour, and for her aliment, and her children's. It was alleged for Chisholm, That the said tack, being but a private deed, could not prejudge a lawful creditor, who was in bona fide to lend his money to Sir James; and that the said tack was donatio, which in law was revocable, and revoked by granting of the bonds whereupon the comprising was led. This allegeance was repelled, and the tack sustained, in respect of this reply, That notwithstanding the conception of the tack, for love and favour, yet it was remuneratory, in so far as upon an inhibition prior to the contract of marriage, there were four chalders of victual of the conjunct fee evicted, and she being provided to 24 chalders of victual, there inlacked four thereof, which they found a good ground to sustain the tack. This was done me reclamante upon these reasons, that the tack was not at all granted upon the foresaid considerations, but for love and favour, neither was the inlack made out till long after the tack, and so could be no cause thereof.
