Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Dr Balfour and His Spouse v. Mr William Wood
Date: 18 January 1670 Case No. No 24.
A father-in-law, who was tutor to his daughter-in-law, gave discharges of annualrent as tutor, in prejudice of his own rights jure mariti. This having been done by mistake, was found no homologation of the pupil's right to the annualrent.
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Umquhile Mr James Wood having been tutor to his wife's daughter, she being now married to Dr Balfour, they pursue Mr William Wood, as representing his father, for a tutor accompt; in which accompt, the auditors reported these points: 1mo, The pursuer insisted for the whole sums bearing annualrent, whereof no part belongs to the wife as relict, she being excluded by the act of Parliament. The defender answered, That he opponed the testament and confirmation unreduced, whereby there is a tripartite division of the whole sums, and the relict has one third which belonged to the defunct tutor, her husband, jure mariti.
The Lords repelled this allegeance, and found that the error of the confirmation was corrigible without reduction.
2do, The defender alleged that he was not comptable for the annualrent of one of the sums acclaimed; because, by the bond, it was provided in liferent to the relict, whereto his father had right, jure mariti. It was answered, That the tutor had given several discharges of that annualrent as tutor, and not as husband, and so had homologated and acknowledged the pupil's right to the annualrent. It was answered, That the discharge was so granted by error and mistake, et falsa designatio non obest ubi constat de re, and offered to prove by the bond that the wife was liferenter.
