Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Walter Stewart
v.
Robert Graham

Date: 15 June 1670

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In a reduction of a disposition of the lands of Hiltoun, pursued at Walter Stewart's instance, as creditor to William Graham, as being assignee to a bond of 1000 merks, long before the disposition, upon this reason,—That the disposition was made in fraudem creditorum, and fell within the Act of Parliament 1621, as being inter conjunctas personas; the lands being disponed by a contract of marriage, bearing for love and favour, and that the defender had married William Graham's wife's niece:

It was answered for the defender, That the right of the lands, being made in contemplation of marriage, and that, by the contract, he had obliged himself for a provision to the children, and a competent provision to his wife, could not fall within the Act of Parliament.

The Lords, having considered the contract of marriage, whereby the defender was only obliged to employ 5000 merks, which he declared he was then worth in goods and merchandise, did incline to find the reason of the reduction relevant, in so far as the fee of the lands did exceed a competent tocher, which might be answerable to his provision.

But it being further alleged by the defender, That the fee was burdened with the liferent of William Graham and his wife, and that the lands were affected with prior comprisings, which he was forced to redeem. To which it was replied for the pursuer, That, beside the fee of the lands, the defender was assignee to £20,000 worth of bonds, by which he had redeemed all former apprisings; as likewise, that the defender's right was affected with a reservation of a power to the disponer to burden with 5000 merks, whereof the bond pursued on was declared to be a part.

The Lords, before answer, did ordain both parties to be heard upon these grounds.

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