Subject_1 HUSBAND and WIFE. Subject_2 DIVISION VIII.
The Wife how far valens agere without concourse of her Husband.
Subject_3 SECT. VI.
Husband bound to do diligence to recover his wife's tocher, unless when due by herself.
Menzies v. Corbet
Date: 21 November 1671 Case No. No 270.
A wife was infeft in a liferent with this condition, that she should have no benefit by her infeftment till her tocher should be paid. Found that neither her husband nor his singular successors could obtrude this provision, unless it could be instructed that the husband did diligence, or that the debtor of the tocher was known to be insolvent.
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By contract of marriage betwixt John Maxwell of Wreath, and Mary Menzies, she is infeft in certain lands in liferent; but the contract contains a clause, that neither she nor her children should have benefit thereby until the tocher were fully paid; but she is not the person obliged for the tocher. John Corbet having apprised the lands from her husband's apparent heir, the tenants call them both in a double poinding. The relict craves preference upon her infeftment, as being anterior. The appriser excepts upon the suspensive clause in the contract. The relict answers, that the appriser in this point can be in no better case than the husband's heir, who would be excluded by this objection, that the wife not being obliged to pay the tocher, but a third party, it was the husband's duty to have pursued for the same, and his wife being sub potestate viri, could nor should not pursue therefor; and the husband, nor none succeeding to his right, can obtrude the want of that provision, which was through his own fault;
Which the Lords found relevant, unless the apprisers instruct that the husband did diligence, or that the debitor of the tocher was known to be insolvent; the husband having lived seven years after the marriage.
